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REPORTS

CASES DETERMINED

THE SUPREME COURT

OF THE

STATE OF ILLINOIS,

FROM

NOVEMBER TERM, 1853, TO JUNE TERM, 1854,

BOTH INCLUSIVE.

By E. PECK,

COUNSELOR AT LAW.

VOLUME XY.

with notes
By WM. H. underwood

ST. LOUIS:

PUBLISHED BY W. J. GILBERT.

CHICAGO : E. B. MYEES.

1870.

Entered according to Act of Congress, in tlie year 1S70,

ByW. J. GILBERT,

In the Clerk's Office of the District Court of the United States for the Eastern DIsti'ict

of Missouri.

BELLEVILLE, ILL.

KIMBALL & TAYLOR, PRINTERS,

ADVOCATE PRINTING HOUSE.

JUDGES OF THE SUPREME COURT.

SA^IUEL H. TREAT, Chief Justice.

JOHN D. CATON, \

WALTER B. SCATES, ) ^^^ociate Justices.

RULE OF COURT

ADOPTED DECEMBER TERM, 1853,

Ordered^ That in all cases hereafter, the arguments of
counsel shall be limited to two hom'S, except when the
Court may think it necessary to allow, "by special
permission, the opening argument to extend "beyond that
time, not exceeding three hours.

Treat, C. J., dissented.

TABLE OF CASES

PAGE

Ackerland et al., Scholes et

al. V. 474

Adams et al. v. Johnson 345

Adams et al. v. Neeley 380
Addix et al. v. Fahnestock

et al. 448
Alton, &c. Railroad Co. v.

Northcott 49

Ayers v. Grider 37

Ayres v. Baumgarten 444

Ayres v. McConnel 230

Bailey et al., Rawlings v. 178
Baker v. Copenbarger et al. 103
Baker, May v. 89
Baker v. Pratt 568
Baldridge et al., Casey v. 65
Bangs et al., Smith v. 399
Barrett v. Stow 423
Bartley, Herod et al. v. 58
Bates, Bryan v. 87
Baumgarten, Ayres v. 444
Beadles v. Smith et al. 326
Belleville and Illinois Rail-
road V. Gregory et ux. 20
Bentley, Dalton et al. v. 420
Bentley, Keel v. 428
Besimer et al. v. The People 439
Bessenden, Scofieldv. 78
Billings V. Detten 218
Bingham v. Maxcy 290

PAGE

Bingham et al. v. Maxcy 295

Birkby v. Birkby et al. 120

Bishop, Williams v. 553

Blanchard et al. v. Morris 35

Bloom V. Van Rensselaer 503

Blue V. Leathers 31

Bolton, Frink et al. v. 343

Boswell, Harlow v. 56

Bosworth V. Frankberger 508

Brennan et al. v. the People 511

Brewster v. Kilduff 492

Bright, Johnson v. 464
Bristol V. Chicago & Am^ora

Railroad Co. 436

Brown v. Parker 307

Bulkley, Ingalls v. 224

Bryan v. Bates 87
Bryant, Peoria and Bureau

Valley Railroad Co. v. 436

Buckmaster et al. v. Job 328

Burgess v. Wilson 388

Burke v. Smith et al 158

Burnside, Clark et ai. v. 62

Butler V. Mehrling 488

Byrne v. Stout 180

C.
Canal Boat Col. Butts, Mer-

riman et al. v. 585

Capps, Enos v. 277

Casey v. Baldridge et al. 65

Casey et al., Gaty et al. v. 189

Chamberlain, Turney y. 271

Vlll

TABLE OF CASES.

Chapin v. Curtenius et al. 427
Chicago and Aurora Rail-
road Co., Bristol V. 436
Chicago and Rock Island

Railroad Co., Conger v. 366
Chicago and Rock Island

Railroad Co., Halligan v. 558
Chickering et al. v. Ray-
mond et al. 362
Clark, Harding et al. v. 30
Clark V. The People 213
Clark et al. v. Burnside 62
Clark et al., Crawford et

al. V. 561

Clement et al. v. Evans 92

Cochran et al. v. McDowell 10
Col. Butts, Canal Boat,

Merriman et al. V. 585

Conger v. Chicago and Rock

Island Railroad Co. 366

Cook, Lake v. 353

Copenbarger et al. , Baker v. 103
Corwin et al., Underhill v. 556
Couchman, Kimball v. 138

Couchman, The People, ex

rel. Manier v. 142

County Commissioners of

Peoria, Eddy v. 375

County of Gallatin, Dun-
lap V. 7
County of Macoupin v. Ed-
wards 197
County of St. Clair v. Irwin 54
Cowgiil V. Long 202
Crane, Clark v. 213
Crawford et al. v. Clark

et al. 561

Critzer v. McConnell 172

Crocker, Illinois State Hos-
pital V. 185
Crouch V. Hall 263
Cummerford v. McAvoy 311
Cummings, Jackson v. 449
Cummins v. Cummins 33
Curry v. Mount Sterling 320
Curtenius etal., Chapin v. 427

Dalton et al. v. Bentley
Davis et al. v. Hopkins
Dennis v. Maynard et al.
Detten, Billings v.
Donnell et al., Johnson v.
Doty V. Wilder
Dowling, Young et al. v.
Doyle V. Wiley
Dudding v. Hill
Dumoss et al. v. Francis
Dunlap V. County of Gallatin 7
Dwight V. Newell 333

420
519
477
218

97
407
481
576

61
543

Eddy V. County Commis-
sioners of Peoria 375

Eddy V. The People, ex rel.
Eddy 386

Edey, Smalley v. 324

Edwards, Macoupin Coun-
ty V. 197

Emmert et al., Thompson
et al. V 415

Enos V. Capps 277

Evans, Clement et al. v. 92

Fahnestock et al., Addix

et al. V. 448

Fergus v. Hoard 357

Foltz V. Prouse 434

Francis, Dumoss et al. v. 543

Frankberger, Bosworth v. 508

Frink et al. v. Bolton 343

Frye v. Menkins 339

Gaddis, Sanford v. 228

Galena and Chicago Union

Railroad Co. v. Yarwood 468
Gallatin County, Dunlap v. 7
Gaty et al. v. Casey et al, 189
Gibbs et al. Kennedy et al. v. 406
Gibson v. Manley et al. 140
Gillilan et al. Gray et al. v. 453

TABLE OF CASES.

Gilman, McCumber et al. v. 381
Goddard v. Jacksonville 688
Gray et al. v. Gillilan et al 453
Gregory et ux., Belleville

and Illinois Railroad Co v. 20
Grider, Ayers v. 37

Grossman, Pfeiffer v. 53

Guinardv. Heysinger et al. 288

Hadden v. Shoutz
Hahn, Weer v.
Ham v. The People

581
298
302

Hall, Crouch v. 263

Halligan v. Chicago and Rock

Island Railroad Co. 658

Harding et al. v. Clark 30
Harlow v. Boswell 56

Hatch et al. v. Wagner 127
Hartsock, Pickett v. 279

Herod et al. v. Bartley 58

Heysinger et al., Guinardv. 288
Higgins, Illinois State Hos-
pital V. 185
Higgins, People, ex rel. Ste-
venson V. 110
Hill, Dudding V. 61
Hill etal., Polk V. 130
Hinde et al. v. Wabash Navi-
gation Co. 72
Hoard, Fergus v. 357
Holmes v. Stummell 412
Honner v. The Illinois Cen-
tral Railroad Co. 550
Hopkins, Davis et al. v. 519
Hughes, Leddo et al. v. .41
Humphreys v. Spear et al. 275
Hunter v." Silvers 174

Illinois Central Railroad Co.,
Honner v. 650

Illinois State Hospital v.
Crocker 185

Ingalls v. Bulkley 224

Illinois State Hospital v.

Higgins 185

Irwin, County of St. Clair v. 54

Jackson v. Cummings
Jacksonville, Goddard v.
Jacksonville, Warren v.
Jenkins, May v.
Job, Buckmaster et al. v.
Johnson, Adams et al. v.
Johnson v. Bright
Johnson v. Donnell et al.
Jones, Ryan v.

449

588
236
101
328
345
464
97
1

Keating v. Thorp 220

Keel V. Bentley 228

Kellogg et al., Matteson et

al. V. 547

Kellogg, O'Keefe v. 347

Kellogg, Phelps et al. v, 131
Kennedy et al. v. Gibbs et al. 406
Kennedy et al. v. Northup

etal. 148

Kennedy et al. v. The People 418
Ketchum v. Stolp 341

Kilduff, The People, ex rel.

Brewster v. 492

Kimball V. Couchman 138

Kimball v. Mulhern et al. 205
King et al. v. King 187

Kinney et al. v. Turner 182
Kirby, Watt v. 200

Kurtz et al., Morrison v. 193

Lake v. Cook 353

Lane v. Soulard et al. 123

Latimer at al., Lavender et

al. V. 80

Lavender et al. v. Latimer

et al. 80

Leathers, Blue v. 31

Leddo et al. v. Hughes 41

Long, Cowgill v. 202

TABLE OF CASES.

Louk V. Woods 256

Low et al. v. Nolte 368

Lowry et al. v. Wriglit et al. 95

MacoupinCounty V. Edwards 197
Main v. McCarty et al. 441

Manier v. Couchman 142

Manley et. al., Gibson v. 140
Mark, Rupert et al. v. 540

Markham et al. v. Stevenson 209
Marsh et al. v. The People 284
Martin, Noakes v. 118

Martin V. Walker 377

Maton et al. v. The People 536
Matteson et al. v. Kellogg

et al. 547

May V. Baker 89

May V. Jenkins 101

Maynard et al., Dennis v. 477
Mayo et al., Whitney et al. v. 251
Maxcy, Bingham v. 290

Maxcy, Bingham et al. v. 295
McAvoy, Cummerford v. 311
McAvoy, Sibert v. 106

McBratney at al.. Pile v. 314
McCarty et al., Main v. 441
McConnel, Ayres v. 230

McConnel, Critzer v. 172

McCumber et al. v. Gilman 381
McDonnell, Cochran et al. v. 10
Mehrling, Butler v. 488

Menkins, Frye v. 339

Merriman et al. v. Canal

Boat Col. Butts 585

Mitchell, Reeve v. 297

Morris Blanchard et al. v. 35
Morris V. Trustees of Schools 266
Morrison v. Kurtz et al. 193
Mount Sterling, Curry v. 320
Mulhern et al, Kimball v. 205
Murray, Ottawa Northern

Plank Road Co. v. 336

Murray at al., Whittaker et

al. V. 293

Musselman et al. v. People [51

N.
Neeley, Adams et al. v. 380
Newell, Dwighf V. 333
Noakes v. Martin 118
Nolte, Low et al. v. 368
Northcott, Alton, &c. Rail-
road Co. V. 49

O'Keefe v. Kellogg 347

Ottawa Northern PlankRoad
Co. V. Murray • 336

Parker, Brown v. 307

Pate V. The People 221

People ex rel. Beadles, v.

Smith et al. 326

People, Besimer et al. v. 439
People, Brennan et al. v. 511
People, ex rel. Brewster et

al.,v.Kilduff 492

People, ex rel. Burgess, v.

Wilson 388

People, Clark v. 213

People,ex rel. Eddy ,Eddyv. 386
People, Ham v. 302

People, Kennedy v. 418

People, ex rel. Manier v.

Couchman 142

People, Marsh et al. v. 284
People, Maton et al. v. 536
People, Musselman et al. v. 51
People, Pate v. 221

People V. Rhodes 304

People, Solomon v. 291

People, ex rel. Stevenson v.

Higgins 110

People, Sullivan v. 233

People, Wight et al. v. 417
Peoria and Bureau Valley

Railroad Co. v. Bryant 438
Petrie, Sloan v. ' 425

Pfeiflfer v. Grossman 53

Phelps et al. v. Kellogg 131

TABLE OF CASES.

Phelps V. Smith 572

Phelps, Wright v. 4-14

Pickett V. Hartsock 279

Pile V. McBratney et al. 314

Polk V. Hill et al. 130

Pool, Sloo V. 47

Pratt, Baker v. 568

Prouse, Foltz v. 434

Ralston et al. v. Wood 159

Rawlings v. Bailey et al. 178
Raymond et al. Chickering

et al. V. 262

Reeve v. Mitchell 297

Renwick, Root v. 461

Reynolds v. Wilson et al. 394

Rhodes, The People v. 304

Richeson v. Ryan et al. 13

Rogers, Simp kins v. 397

Root V. Renwick . 461

Ross V. Utter 402

Rupert et al. v. Mark 540

Ryan v. Jones 1

Ryan et al., Richeson v. 13

S.
Sackett et al., Smith et al. v. 528

Sanford v. Gaddis 228

Sandusky, Wilderman et al. v. 59

Scofield V. Bessenden 78
Scholes et al. v. Ackerland

et al. 474
Schools, Trustees of, Mor-
ris V. 266
Shoutz, Hadden v. 581
Sibert v. McAvoy 106
Silvers, Hunter v. 174
Simpkins v. Rogers 397
Siskv. Woodruif 15
Slack v. McLagan 242
Sloan V. Petrie 425
Sloo V. Pool 47
Sloo et al., Thomas v. 66
Smalley v. Edey 324
Smith V. Bangs et al. 399

Smith et al., Burke v. 158

Smith, Phelps v. 572
Smith et al. , People, ex rel.

Beadles, v. 326
Smith et al. v. Sackett et al. 528

Solomon v. The People 291

Soulard et al. Lane v. 123

Spear et al. Humphreys v. 275

St. Clair County v. Jxmn 54

Stevenson v. Higgins 110

Stevenson, Markhamv. 209

Stewartson v. Stewartson 142

Stolp, Ketchum v. 341

Stout, Byrne v. 180

Stow, Barrett v. 423

i Stummel, Holmes v. 41

Sullivan v. The People 233

Thomas v. Sloo et al. 66
Thompson et al. v. Emmert

et al. 415
Thompson et al. Vaughan v. 39
Thorp, Keating v. 220
Trustees of Schools, Mor-
ris V. 266
Turner, Kinney et al. v. 182
Turney v. Chamberlain 271

Underbill V. Corwin et al. 556

Utter, Ross v. 402

Van Rensselaer, Bloom v. 503

I Vaughan v. Thompson et al. 39

Vignos V. Vignos 186

Wabash Navigation Co.,

Hind et al. v. 72

Wagner, Hatch etal. v. 127

Walker, Martin v. 377

Warren V. Jacksonville 236

Watt V. Kirby 200

Weer v. Hahn 298

Xll

TABLE OF CASES.

Whitney et al. v. Mayo et al. 257

Woodruff, Sisk v.

Whittaker et al. v. Murray

Woods, Louk V.

256

et al. 293

Wright et al. , Lowry et al. v

Wight et al. v. The People 417

Wright V. Phelps

444

Wilder, Doty v. 407

Wilderman et al. v. Sandusky 59

Wiley, Doyle v. 572

Yarwood, Galena &Chicago

Williams v. Bishop et al. 553

Union Railroad Co. v.

,468

Wilson, People, ex rel.

Young et al. v. Dowling

481

Burgess, v. 388

Wilson, Reynolds v. 394

Wood, Ralston et al. v. 259

Zimmerman v. Zimmerman

DECISIONS

THE SUPREME COURT

OP THE

STATE OF ILLINOIS,

NOVEMBER TERM, 1853, AT MOUNT VERNON.

Ebenezer Z. Ryan, survivor of Albert G. Caldwell and Eben-
ezer Z. Ryan, Assignees of the Bank of Illinois, wlio sues for
tlie use of William Thomas, Trustee of said bank, plaintiff in
error, v. John T. Jones, Executor of Michael Jones, and Dev-
isee of the said Michael Jones, defendant in error.

ERROR TO GALLATIN.

The creditor of a deceased person may reach the lands of decedent in
tlieliands of tlie lieir or devisee, wliere the personal estate is not suffi-
cient for the payment of the debts.

Real estate aliened bona fide by heirs or devisees, before action brought,
is not subject to sale for the debts of the ancestor or devisor, but the
heir or devisee is personally liable for the value of the lands.

Every devise of real estate is fraudulent and void as against existing
creditors of the devisor.

Creditors may enforce the liability of heirs and devisees, by a joint
action against the legal and personal representatives of a deceased
person. He may sue the personal representative and the heirs or
devisees jointly, or he may sue them all jointly.

The personal representative should be joined in the action, except where
a judgment has been obtained against him, and there are no assets in
his hands ; and where the estate was not administered on within one
year from the death of the testator or intestate.

ISIOUNT VERNON.

Eyan v. Jones.

The personal estate of a decedent is primarily liable for the payment of
the debts, and must be exhausted before resort can be had to the real
estate.

Demands against an estate must be exhibited within two years from the
grant of administration ; and a creditor free from disability, who
foils to present his claim within that time, must satisfy his debt out
of other property than that previously inventoried or accounted for.

In joint actions under the statute, the executor or administrator may
insist upon the limitation of two years ; but heirs and devisees can
only insist upon the general statute of limitations.

If the heir or devisee shall plead 7'ie7i pa?' descent, and the issue be found
for him, the plaintiff may take judgment of assets quando acdderint,
and have a scire facias thereon, if assets are afterwards received.

In cases where the heir or devisee confesses the action, without con-
fessing assets, or upon demurrer, &c., the judgment is general against
the heir or devisee ; but if he acknowledge the action and show the
assets, the judgment will be special to the extent of the assets.

Where the limitation of two years is unsuccessfully interposed, the
judgment should be for payment in the due course of administration.

A judgment against the heirs or devisees, should not be enforced, until
the assets in the hands of the executor or administrator are found to
be insufficient ; and then only for the deficit.

Where a separate action is brought against heirs or devisees under the
statute, the facts authorizing it must be set forth in the declaration.

This cause was heard by Marshall, Judge, at July term, 1853,
of the Gallatin Circuit Court.

W. Thomas, for plaintiff in error.

R. F. WiNGATE, for defendant in error.

Treat, C. J. This was an action of debt brought by Ryan
against John T. Jones, as executor and devisee of Michael Jones.
The declaration averred that the defendant was the executor of
Michael Jones, and the devisee of certain real estate fraudulently
devised to him by Michael Jones ; and alleged the making of cer-
tain promissory notes by Michael Jones to the Bank of Illinois,
and the assignment thereof to the plaintiff ; and assigned for
breach that the same were not paid by Michael Jones in his life-
time, nor by the defendant since his decease. The court held
that the action could not be maintained against the defendant
in his character of executor and devisee ; and sustained a demur-
rer to the declaration.

The case calls for a construction of some of the provisions of
the 44th chapter of the Revised Statutes. The eighth section
provides that " When any land, tenements or hereditaments, or
any rents or profits out of the same, shall descend to any heir or
heirs, or be devised to any devisee or devisees, and the personal
estate of the ancestor of such heir or heirs, or devisor of

NOVEMBER TERM, 1853.

Ryan v. Jones.

such devisee or devisees, shall be insufficient to discharge the
just demands against such ancestor, or devisor's estate, such
heir or heirs, devisee or devisees, shall be liable to the creditor
of their ancestor or devisor, to the full amount of the lands,
tenements, or hereditaments, or rents and profits out of the
same as may descend, or be devised to the said heir or heirs,
devisee or devisees." It further provides, that real estate bo7ia
fide aliened by heirs or devisees before action brought, shall not
be subject to sale on judgment rendered against them for the
debts of the ancestor or devisor ; but in such case the heirs or
devisees shall be personally liable for the value of the lands so
descended or devised. The 5th section reads thus ; " All wills
and testaments, limitations, dispositions, or appointments of or
concerning any lands and tenements, or of any rent, profit,
term, or charge, out of the same, whereof any person or persons
at the time of bis, her, or their decease, shall be seized in fee-
simple, in possession, in reversion, or remainder, or have power
to dispose of the same by his, her, or their last will and testament,
shall be deemed and taken (only as against the person or persons,
his, her, or their heirs, successors, executors, administrators, or
assigns, and every of them, whose debts, suits, demands, estates,
and interests, by such will, testament, limitation, disposition, or
appointment as aforesaid, shall or might be in anywise dis-
turbed, hindered, delayed, or defrauded) to be fraudulent, void,
and of none effect, any pretense, color, feigned or presumed
consideration, or any other matter or thing to the contrary not-
withstanding." At the common law, a devisee was not liable
for the debts of the testator even in respect of lands devised.
Nor was an heir liable for the debts of the ancestor, in respect
of lands descended, except in particular cases ; such as debts
clue on specialities, in which the ancestor expressly bound the
heir; and on judgments recovered against the ancestor, and
recognizances acknowledged by him. And where the heir
aliened the lands before suit brought, the creditor was without
remedy against him. 2 Williams on Executors, 1201 ; Browne
on Actions at Law, 253 ; 1 Cruise's Digest, 67. The statute
in question was passed to obviate these inconveniences, and
enable the creditor of a deceased person to reach the lands in
the hands of the heir or devisee, where the personal estate is
not sufficient for the payment of the debts. Every devise of
real estate is made fraudulent and void, as against the existing
creditors of the devisor. It is fraudulent in law, without regard
to the que»tion of intention. The devisee has no just claim to
the lands, until the debts of the testator are fully discharged.

MOUNT VERNON.

Ryan v. Jones.

Nor has the heir any superior right to the lands of his ancestor.
They both acquire the lands subject to the payment of the
debts of the former owner. They are only entitled to the sur-
plus that may remain after those debts are discharged. If the
creditor cannot obtain satisfaction of his debt from the personal
estate, he may resort to the real estate in the hands of the heirs or
devisees ; and in the case of a bona Jide alienation of the same
before suit brought, he may charge them personally with its
value.(a)

The 6th section is as follows : " Any person or persons, his,
her, or their heirs, devisees, executors, administrators, successors,
or assigns, and every of them, who shall or may have any debts,
suits, or demands, against any person or persons who shall make
any fraudulent devise as aforesaid, or who have debts, suits, or
demands against any person or persons who shall die intestate,
and leave real estate to his, her, or their heirs, to descend accord-
ing to the laws of this State, shall, and may have and maintain
the same action or actions, which lie against executors and admin-
istrators, upon his or their bonds, specialities, contracts, agree-
ments, and undertakings, against the executors or administrators,
and the heir or heirs, or against the executors or administrators,
and the devisee or devisees, or may join the executors or admin-
istrators, the heir or heirs, and the devisee or devisees, of such
obligor or obligors, undertaker or undertakers as aforesaid, and
shall not be delayed for the nonage of any of the parties." This
section prescribes the mode in which the liability of heirs and
devisees shall be enforced. It authorizes the creditor to maintain
a joint action against the legal and personal representative of a
deceased person. 1. He may sue the personal representative and
the heirs jointly. 2. He may sue the personal representative-
and the devisees jointly. 3. He may sue the personal represen-
tative and the heirs and devisees jointly. The personal represen-
tative must be joined in the action, as the personal estate is
the primary fund for the payment of debts. There are two
cases in which he need not be joined. The 10th section author-
izes a separate action against the heirs or devisees, where a
judgment has been obtained against the personal representative,
and there are no assets in his hands for its payment. And the
11th section gives a separate action against the heirs or devisees,
where the estate is not administered on within one year
from the death of the testator or intestate. These are the only
cases in which the statute authorizes an action to be main-
tained against the heirs or devisees, without joining tiie execu-

(rt) Van Syckle®. Richards, 13111. R. 173, and notes; McCoy «. Mor-
rows, 18 111. R. 519 ; Unknown heirs &c. v. Baker, 23111. R. 491; Thomas
V. Adams, 30 111. R. 37 ; Vanmeter i\ Love, 33 111. 360.

NOA^EMBER TERM, 1853.

Ryan v. Jones.

tor or administrator. It may be that a separate action will still
lie against heirs in cases where they were suable at common law.

This statute must be construed with reference to the provisions
of the 109th chapter of the Revised Statutes. That chapter
makes the personal estate primarily liable for the payment of the
debts. It must be exhausted before resort can be had to the real
estate. Demands against the estate of a deceased person must be
exhibited within two years from the grant of administration. A
creditor, free from disability, Avho fails to present his claim within
that time, is not allowed to participate in the proceeds of the
personal estate previously inventoried or accounted for by the
executor or administrator. He must satisfy his debt out of prop-
erty subsequently discovered or inventoried. In joint actions
under the statute, the executor or administrator may insist upon
this limitation of two years ; and if he does so successfully, the
plaintiff must take judgment against him to be satisfied out of
newly discovered estate. But heirs and devisees cannot rely upon
this limitation. The}^ may insist upon the general statute of lim-
itations ; and, if successful, may wholly defeat a recovery against
them.

The ninth section of the chapter first referred to provides that
heirs and devisees may plead riens par descend at the commence-
ment of the action, and that the plaintifi" may reply that they had
real estate by descent or devise when the suit was brought ; and
that if the issue be found for the plaintifi", the jury shall assess
the value of the lands so descended or devised, and the plaintifi'
shall have judgment against the defendants accordingly. In such
cases, if the assessment is equal in amount to the plaintiff's debt,
he is entitled to a general judgment against the heirs or devisees ;
if less, he is entitled to a judgment to the extent of the assessment.
But if this issue is found for the heirs or devisees, the plaintiff may,
notwithstanding, take judgment of assets quando acciderint ;
and he may have a scire facias thereon, if assets afterwards
come to the hands of the heirs or devisees. Shiplev's Case. 8
Coke, 134 ; Noeil ?'. Nelson, 2 Saunder's Rep. 214 fDyer, 273,
pi. 14 ; Noell v. Nelson, 1 Ventris, 94.

The same section farther provides that " if judgment shall be
given against such heir or heirs, devisee or devisees, by confessing
the action without confessing the assets descended or devised, or
upon demurrer or nihil dicit, or default, said judgment shall be
given forthe plaintiff without any writ to inquire of the lands, tene-
ments or hereditaments, or rents and profits out of the same, so
descended or devised." In these cases, the judgment is general
against the heirs or devisees as for their own debt, without refer-

ILL. R. VOL. XV. 2

:::^

MOUNT VERNON.

Ryan v. Jones.

encc to the assets. But if: the heirs or devisees acknowledged the
action, and sliow the assets descended or devised to them, the
judgment will be special to the extent of: those assets only. So,
if the heirs or devisees plead any other plea than those enumer-
ated in this section, and the issue thereon be charged to the extent
oi: the value of the estate descended or devised.

Where the two years' limitation is not successfully interposed
by the executor or administrator, the judgment against him is for
the amount of the plaintiff's debt, to be paid in the due course
of administration. As the assets in the hands of the executor or
administrator constitute the regular fund for the payment of the
debts, and as the plaintiff may obtain satisfaction therefrom in
whole or in part, the judgment against the heirs or devisees ought
not to be enforced until those assets are found to be insufficient,
and then only to the extent of the deficit. The proper form of
the judgment is that the plaintiff recover his debt from the defend-
ants, to be levied of the assets of the testator or intestate in the
hands of the executor or administrator ; and in the event those
assets are not sufficient for the payment of the judgment, that the
same, or the residue thereof, be levied of the real and personal
estate of the heirs or devisees. This qualification will be un-
necessary in the case of a judgment against the executor or admin-
istrator of assets quando acciderint. Such a judgment does
not imply assets for the satisfaction of the debt. The presump-
tion at the end of two years from the grant of administration is,
that the personal estate has been fully inventoried or accounted
for by the executor or administrator.

In this case the court erred in sustaining the demurrer to the
declaration. The action was properly brought against the execu-
tor and devisee. The defendant might well combine both of
these characters. Where a separate action is brought against
heirs or devisees under the statute, the facts authorizing it to be
so brought, must be distinctly set forth in the declaration. R. S.
ch. 44, s. 12. But in other cases it is sufficient to charge the
defendants as heirs or devisees generally, without showing how
they became such, or that they have estate by descent or devise.
2 Chitty's PI. 468 and notes ; 2 Saunders' Rep. 7, note 4 :
BroAvne on Actions at Law, 255 ; Morgan's Ex'rs v. Morgan, 2
Bibb, 388.

The judgment is reversed, and the cause remanded.

. Judgment reversed.

NOVEMBER TERM, 1853.

Dunlap V. Gallatin County.

JAI.IE3 DuxLAP appellant, v. The County of Gallatin,

appellee.

APPEAL FROM GALLATIN.

A tax is not an ordinary debt; it takes precedence of all other demands ;
and is a charge upon the property, without reference to the matter of
ownership.

The property itself may be seized and sold, although there may be prior
liens or incumbrances upon it.

The State is not bound lo wait until the estate of a deceased person is
administered, and then participate with other creditors in the pro-
ceeds, but may enforce paj'ment to the exclusion of all other creditors.
So of an insolvent estate iu the hands of trustees.

The remedy by distress, for the collection of taxes, is not necessarily ex-
clusive.(«)

The opinion contains a statement of the case. The cause was
hearel at the July term, 1853, of the Gallatin Circuit Court, before
Marshall, Judge.

J. xV. McClerxand, for appellant.

N. L. Freeman, for appellee.

Treat, C. J. The act of the 28th of February, 1815, requir-
ed the Bank of Illinois to make an assignment of all its
real and personal estate ; the real estate to be conveyed to
Caldwell, Ryan, Hardin, and Dunlap ; the personal estate of
the principal bank at Shawneetown and the branch at Law-
renceville, to be transferred to Caldwell and Ryan ; and that of
the branches at Jacksonville, Alton, and Pekin, to be transferred
to Hardin and Dnnlap. The act made it the duty of the
assignees to dispose of the property and collect the debts, and
app5^ the proceeds to the payment of the liabilities of the insti-
tution. On the 10th of April, 1815, the bank conveyed and
transferred all of its property and effects, pursuant to the provis-
ions of the act ; and the assignees entered upon the discharge of

their duties.

In May, 1849, the county of Gallatin brought an action of
debt against Caldwell and Ryan, to recover the county taxes
for the years 1845, 1846, and 1847, assessed on the sum of
^260,000, as money loaned by the bank at Shawneetown ;
and judgment was rendered therein in favor of the county, for
$2,377, in November, 1850. 'An execution issued on the judg-
ment was, on the 8th of March, 1851, levied on lot 1,106 in the

(a) Lane Co. v. Oregon, 7 Wal. XJ. S. Pv. 80, contra.

MOUNT ^^RNON.

Dunlap V. Gallatin County.

town of Shawneetown, on which the banking house was sit-
uated.

On the 17th of March, 1851, Caldwell and Ryan sued out a
writ of error from this court, and obtained a supersedeas stay-
ing all proceedings on the judgment. The case was heard at
the November term, 1852, and resulted in the affirmance of the-
judgment. See Ryan v. Gallatin County, 14 Illinois, 78. On
the 13th of April, 1853, the county sued out a writ of venditioni
expojias, commanding the shenflF to proceed and sell the lot
levied on.

On the 4th of May, 1853, James Dunlap filed a bill in
chancery against the county of Gallatin, and obtained an injunc-
tion restraining the sale of the lot. The bill alleged in
substance, that in December, 1850, the Bank of the State of
Missouri commenced a suit in chancery against the assignees
of the Bank of Illinois, in the Circuit Court of the United
States for the District of Illinois, and that a decree was entered
therein in July, 1851, appointing William Thomas sole trustee-
to execute the trusts under the deed of assignment ; that in
October, 1851, the assignees conveyed to Thomas all the real
estate held by them as assignees, including the lot levied on,
in trust for the benefit of all the creditors of the Bank of Illinois j
that on the 4th of April, 1853, Thomas sold and conveyed the
lot in question to the complainant for the consideration of
$7,150, which was at the time fully paid in the indebtedness
of the Bank of Illinois ; and that there was other real estate in
the county held by Thomas as trustee, sufficient for the satis-
faction of the judgment. These allegations were admitted to
be true by the answer. The cause was submitted on bill and
answer at the July term, 1853, and a decree was entered dis-
solving the injunction and dismissing the bill, and awarding
the ci^uuty six per cent, damages on the amount of the
judgment.

It^was decided in the former case, that the property held by
the assignees of the Bank of Illinois was subject to taxation.
Thar question was deliberately settled, and Avill not again be
discussed. The only question in this case is, whether the
judgment recovered against the assignees for taxes can be enforc-
ed agiiiiist the real estate then held by them. It makes no difi'er-
ence that they' have since been removed from office, and a single
trustee appointed to carry out the ptirposes of the assignment.
The trusiee holds the property by the same tenure as did the
assignees. He succeeds to thek powers and duties. The
same trusts remain to be executed. The county has the same

NOVEMBER TERM, 1853.

Dunlap v. Gallatin County.

iremedy against the trustee that it had against the assignees.
If the judgment was a lien on the real estate in the county held
by the assignees, that lien was not divested by tlie proceedings
in the United States Court. We think the judgment was a
lien on such real estate, and that it may be enforced against the
lot in question. This was the opinion of the court in the
original case. It was there said: "Under the execution issued
on the judgment, any property of the assignees as such, real or
j)ersonal, may be seized as in other cases of execution." The
claim of the county does not stand on the same footing with
the other indebtedness of the bank. It is entitled to priority in
payment. A tax is not an ordinary debt. It is levied for the
support of government, and takes precedence of all other
demands against the owner. It is a charge upon the property,
without reference to the matter of OAvnership. The property
itself may be seized and sold, although there may be prior liens
or incumbrances upon it. (a) The estate of a deceased person is
primarily liable for the taxes that may be due from it. The
State is not bound to wait until the estate is administered, and
then participate with the creditors in the distribution of the
proceeds. It may enforce payment to the exclusion of all
other creditors. And so of an insolvent estate in the hands of
trustees, under a compulsory or voluntary assignment. In this
case, the .property passed to the assignees for the benefit of the
creditors of the bank. It became a common fund for the pay-
ment of their debts. Bat the assignees acquired the same sub-
ject to the right of the State to charge it with taxes. The
creditors likewise acquired interests therein subordinate to this
right of taxation. They are only entitled to the surplus that
may remain after the payment of the taxes, and the necessary
expenses of administering the assignment. The judgment
was rendered for taxes assessed upon a portion of this fund,
and it must first be discharo;ed. The collector mio;ht indeed
have coerced payment of the taxes, by the seizure and sale of
any personal property in the hands of the assignees ; but the
remedy by distress is not necessarily exclusive. The assignees
were legally liable for the taxes, and that liability could be
enforced by action of debt. The county having obtained judg-
ment against the assignees, and the property held by them
being absolutely and primarily liable for its payment, the judg-
ment became a lien on the real estate in question. A judg-
ment against them in favor of an ordinary creditor of the bank
would not be a lien, nor could it be enforced by execution
iigainst the property in their hands, because the property is a

(a) Dennis v. Maynard, et ol.post. 477.

10 MOUNT VERNON.

Cochran et al. v. McDowell.

common security for all such creditors. Each of them has an
equal interest therein, and the same right to participate in the
proceeds, These interests and rights might be defeated, by
permitting one creditor to sue out execution against the prop-
erty. It is a matter of no importance to these creditors, out of
what portion of the property this judgment is to be satisfied.
The property constitutes one entire fund, and is aggregately
liable for any incidental charges upon it. The creditors can
only share in what remains after the taxes and expenses are
discharged. Nor is it material that the title to the real estate
was in the four assignees, when the judgment was against two
only. The action could only be maintained against the two,
but the judgment as effectually bound the fund as would a
judgment against all. The demand of the county was estab-
lished against the fund, in the mode prescribed by the law
under which the assigment was made. The complainant
purchased the lot subject to the lien of the judgment. He had
both constructive and actual notice of the judgment and levy. He
has therefore no just cause to complain of the county for endeav-
oring to obtain satisfaction of the judgment by the sale of the lot.
The decree must be affirmed.

Decree affirmed.

Adam Jesse Cochran, by his Guardian, and Mary Johnson,
Administratrix, &c., plaintiffs in error, v. William Mc-
Dowell, defendant in eiTor.

ERROR TO MASSAC.

The declaration of a father in his lifetime, that he had at a previous
period acquired land in the name of his child, with the design of defeat-
ing creditors, cannot be considered as testimony to divest the interest
of the child.

As against an infant every thing must be proved, a guardian cannot
make admissions to bind an infant.

[A plea in a chancery case, if objected to, should be set for hearing.]

The decree in this case was entered by Denning, Judge, upon
bill, answer, replication, and proofs, at June term, 1851, of the
Massac Circuit Court. The facts of the case are sufficiently
stated in the opinion of the court.

R. S. Nelson, for plaintiffs in error.

T. G. C. Davis and J. Jack, for defendant in error.

NOVEMBER TERM, 1858. 11

Coeliriin et al. v. McDowell.

(
Caton, J. The bill, which was filed by the administrator o£

Whitteii against Adam Jesse Cochran and the administratrix of

Adam Crochran, deceased, alleges the recovery of a judgment

by the complainant against the said administratrix, and that the

estate of Adam Cochran was insolvent. The bill further charges,

that Adam Cochran in his lifetime entered a certain tract of land

therein described, with his own funds, in the name of Adam Jesse

Cochran, his infant son, with the view to defraud his creditors,

and prays that the said land may be subjected to the payment of

the judgment.

A guardian ad litem v/as appointed for the infant defendant,
who filed an answer the substance of which it is unnecessary to
state, as no admissions which it contains can bind the infant, or
relieve the complainant from the necessity of establishing his
entire case by proof, as against the infant.

The administrati-ix answered, admitting the record of the
judgment, but insisting that she was never served with process
in the suit at law, or had any notice of its pendency, and that
the judgment was obtained by fraud and connivance. She
also admits the entry of the land by the intestate as alleged,
but denies the fraudulent intent, and insists that it was so
entered as an advance to his infant son in consideration of
natural love and affection, and denies the insolvency of the
estate. The guardian ad litem also filed a plea in bar of a
. former suit for the same cause, by the same complainant, against
Adam Jesse Cochran, which vras dismissed, because the adminis-
tratrix had not been made a party. To this plea a demurrer was
filed, but no further notice seems to have been taken of it by
the parties or the court. In order to bring the question of the
legal sufficiency of the plea before the court, the proper practice
is to set the plea for hearing instead of demurring to it. If we,
however, consider the demui'rer as equivalent to setting the plea
for hearing, and as the question may again arise in the court
below, we may express the opinion that the plea does not present
a bar to the present bill. There was then no adjudication upon
the merits of the controversy, or matter in litigation, but the bill
was dismissed for want of proper parties.

The evidence upon the hearing consisted, first, of an exempli-
fication of the judgment at law, showing a judgment by con-
' fession against the administratrix ; second, a certificate from
the register of the land-ofiice, showing an entry of the land by
the infant, Adam Jesse Cochran : and third, testimony tending
to show the insolvency of the estate, and also the testimony of a
witness, stating that Adam Cochran had in his lifetime told the

12 MOUNT VERNON.

Cochran et al. v. McDowell.

witness that he had] entered the land with his own money in
the name of his son, for the purpose of keeping it from his
creditors.

The administratrix introduced proof showing that she was not
served with process in the action at law, and tending to show
that she had no notice of it, and that the judgment was entered
upon a cognovit executed by a former administrator who had been
removed prior to the entry of the judgment. Indeed I think the
weight of evidence pretty clearly establishes that such was the
case. The court rendered a decree that the land be sold for the
satisfaction of the judgment.

Without stopping to inquire whether there is sufficient proof to
justify the court in holding the judgment at law to be void in a
collateral suit, there can be no question that the proof is entirely
insufficient to justify the decree which was entered as against the
infant. As before remarked, as to him every thing must be
proved. (a) The guardian can admit nothing. The certificate of
the register of the land- office shows, prima facie ^ that the
land was entered by him, and in the absence of proof to the
contrary, the presumption is that it was entered with his own
money. The only evidence adduced that the land was purchased
with the money of the father, is his declaration to the witness
during his lifetime. It has been repeatedly held by this court
that such declarations are not evidence against the son. (6) They
are no more evidence against the son, than would be the declara-
tions of any other third person. To admit the father thus to
appropriate the lands of his son to the payment of his own debts,
would be in violation of every principle of law. The relation of
parent and child gives the father no such right ; and had the
owner of the land been a stranger, no one Avould have thought
such interested declarations competent to divest the legal holder
of the title of his interest in the pi-emises. It is in the fullest
sense of the term hearsay testimony, and that too of the most
questionable character upon principle ; for the party whose decla-
rations are sworn to had a legal interest in depriving the owner
of his land, and appropriating it to the payment of his own debts.
I trust that real estate in this country is held by a safer tenure
than this.

The decree of the circuit court must be reversed, and the suit
remanded.

Decree reversed.

{n) Wxiiv. Ormsbee, 12 111 R. 169 ; Chaffiii v. Heirs of Kimball, 23 111.
R. 38 and cases cited.

{b) Simpkins v. Rogers poi<t' 397 ; Rust v. Mansfield, 2o 111. R. 339 ; My-
ers i\ Kinzie, 26 III. R'. 37 ; Hessing i\ McCloskey, 37 111. R. 353 ; Miner
V. Phillips, 42111. R. 130.

NOVEMBER TERM, 1853. 13

Richeson v. Ryan et al.

JohnD. Richeson, plaintiff in error, v. Ebenezer Z. Ryan et al.,
Assignees of the Bank of Illinois, defendants in error.

ERROR TO GALLATIN.

Wliere pleas are filed, and not in any way disposed of, it is erroneous

to proceed to trial upon other pleas and issues.
The survivor of several trustees may maintain a suit in his name,

whether he can or not go on alone to execute all the duties and powers

of the trust.

N. L. Freeman, for plaintiff in error.
W. Thomas, for defendants in error.

Scates, J. There were several pleas filed upon which no
issue was taken, nor was there any disposition made, or notice
taken of them, but the parties proceeded to trial upon other pleas
and issues. This has repeatedly been held to be eroneous. Nye
V. Wright, 2 Scam. 222 ; Bradshaw v. Hoblett, 4 Scam. 53 ;
Steelman v. Watson et at., 5 Gilman, 249 ; and Moore v. Little
e/ a/., mil. 549.

It is unnecessary to aver an acceptance of the act of the legis-
lature putting the bank into liquidation, as provided in the act, for
all these preliminary steps will be presumed, where the contract
sued on, as in this case, was made with the assignees, and the
promises were to them.

The note was given to Caldwell and Ryan, assignees, and pay-
able to Caldwell or his successor. The suit was instituted by
both; but Caldwell afterwards died, and it is here objected that
the trust does not survive so as to enable Ryan to act and sue
alone. Without determining the extent of the right and powers
which may or may not survive to one or more of the trustees,
under the liquidation act (Laws of 1842, 246, 247, §§ 3, 5, 6,
8, 9, and 13), we can see no valid objection to the use of Ryan's
name alone in prosecuting this suit to a final conclusion. For
although the survivor or survivors in case of a vacancy might fill
it, or the governor, if they should neglect or refuse to do so (Acts
of 1845, 248, § 9); yet another act (R. L. 1845, 44, § 9), pro-
vides thai the death of one or more plaintiffs will not abate a
cause of action which survives to the survivor.

It surely cannot be contended, that this cause of action is
abated and lost. The contract was with Caldwell and Ryan, and
like other contracts should be sued by the promisees or the sur-
vivor ; but it may be also true that Caldwell's successor, when

14 MOUNT YERNON.

Richeson v. Ryan et al.

appointed, might have the control, or an equal voice in the con-
trol of the suit, althought not a party upon the record. The anal-
ogy is not unfamiliar, in cases where one of two plaintiff's dies, his
executor or administrator is not substituted. The statute (R. L.
1845, 44, § 11,) has expressly provided for the case of a sole
plaintiff" suing in the character of a public officer or a trustee, that
if the cause of action survive, the successor shall be substituted.
But here the parties to the contract are not all dead ; one survives
in whom the legal title subsists, and by every principle and analogy
in such cases, the suit may be maintained in his name, whether he
can or not go on alone to execute all the duties and powers of the
trust.

The principle laid down in Peter v. Beverly, 10 Peters' Rep.
563 ; Hertell v. Van Buren, 3 Ed's Ch. R. 22 ; Sinclair t-. Jack-
son, 8 Cow. R. 582 ; and Osgood v. Franklin, 2 John. Ch. R.
20, is in harmony with the principle here laid down. The former
deduces from the English authorities, the rule to be "that a mere
directi(^ in a will, to the executors to sell land, without any w^ords
vesting in them an interest in the land, or creating a trust, will
be only a naked power, which does not survive ; but when third
persons have an interest in the thing to be done, the poAver sur-
vives. In Hertell v. Van Buren, the court takes a distinction
between executors and administrators, and other trustees, admit-
ting that the former may act alone, unless restrained by will ; but
that the latter cannot. Still, none of these distinctions will sup-
port tlic objection taken here, which, if good, would possibly
destroy the trust itself, unless, indeed, it could be preserved by
construing the 13th section of the act of 1845, as not only vesting
in the successor, when appointed, "all the right, title, and interest
in and to all the property, estate, right, and credits embraced in
said assignment" (of the bank to the assignees) "or accruing by
virtue thereof," but also the legal title in notes renewed direct to
the prior assignees, and so as to make him a necessary party with-
out an assignment. This view of the question would reach too
far, as it would make the assignees of the Alton, Jacksonville,
and Pekin branches, necessary parties to suits on notes of the
mother bank and Lawrenceville branch. This is inadmissible, as
the act separated them.

Judgment reversed.

NOVEMBER TERM, 1853. 15

Sisk V. Woodruff.

Stratton Si5K, plaintiCf in error, v. Levi Woodruff, defendant

in error.

ERPxOR TO GALLATIN.

A deed executed in anotlier State conveying lands there situated, if
there is no subscribing witness, shouhl be proved by the testimouj^ of
a witness familiar with the handwriting of the grantor.

An act of the legislature of another State should be authenticated by the
seal of the State. The seal of the secretary of state cannot be
regarded as the seal of the State.

In order to maintain an action upon a covenant of a warranty, the par-
ty suing, if he has neglected to give notice to the Avarrantor of the
pendency of the action in ejectment by which he has been evicted,
must come prepared to prove that the eviction was by force of an ad-
verse or superior title ; and that if the warrantor had appeared and
defended the action of ejectment, he could not have prevented a
recovery.

This cause was heard at July term, 1852, ot: the Gallatin Cir-
cuit Court.

N. L. Freeman, attorney for plaintiff in error.

B. Montgomery and R. S. Nelson, for defendant in error.

Treat, C. J. This was an action of covenant brought by
Levi Woodruff against Stratton Sisk. The declaration alleged
in substance that the defendant, on the 13th of September, 1830,
for the consideration of one hundred dollars, sold and conveyed
a certain tract of land, situated in Hopkins county, Kentucky, to
Robert Woodruff, his heirs and assigns, by deed of general
warranty; that on the | twenty-ninth of August, 1832,
Robert Woodruff sold and conveyed the same tract of land to
the plaintiff, his heirs and assigns, by deed of general war-
ranty, and that the plaintiff thereupon took possession of the
same ; and that on the 16th of March, 1848, the heirs at law of
Ninian Edwards, having paramount title to the land existing at the
date of the defendant's deed to Robert Woodruff, evicted and
amoved the plaintiff therefrom by due process of law. The
defendant pleaded five pleas. 1. That the deed alleged to have
been executed by the defendant to Robert Woodruff, was not his
act and deed. 2. That the deed alleged to have been executed
by Robert Woodruff to the plaintiff was not the act and deed of
the' former. 3. That the defendant had kept and performed his

16 MOUNT VERNON.

Sisk V. "Woodruff.

covenant. 4. That the plaintiff was not evicted from the land
Iby the heirs of Edwards, under title paramount to that of the de-
fendant, existing at the date of his deed to Robert Woodruff. 5.
Payment in full before the bringing of the action. A verdict was
returned in favor of the plaintiff for $248.62, and the court re-
fused to grant a new trial. Several exceptions were taken during
the progress of the trial, which will be considered in their order.

First. The plaintiff read in evidence a deed from the defend-
ant to Robert Woodruff, corresponding wiih the one described in
the declaration. The defendant objected to its introduction, be-
cause the certificate of acknowledgment was defective. It will
not be necessary to inquire into the sufiiciency of the certificate.
The statute declares that " no person shall be permitted to deny
on trial the execution of any instrument in writing, whether
sealed or not, upon which any action may have been brought, or
which shall be pleaded or set up by way of defence or set-off,
unless the person so denying the same shall, if defendant, verify
his plea by affidavit ; and if plaintiff, shall file his or her affidavit
denying the execution of such instrument." R. S. ch. 83, § 14.
This pi'ovision is broad enough to embrace this case. The action
was brought directly upon the deed ; and the plea of 7ion est
Jadiim was not verified by affidavit. The execution of the instru-
ment was therefore not in issue. The plaintiff had only to pro-
duce a deed of the character of the one described in the declara-
tion.

Second. The plaintiff read in evidence a deed from Robert
Woodruff to him, corresponding with the one set forth in the
declaration, without any other proof of its execution than the
following certificate of acknowledgment:

" State of Kentucky, > o
County of Hopkins. \
This indenture was this day produced to me by Robert Wood-
ruff, the grantor therein named, and acknowledged by him to be
his act and deed. In testimony whereof, and that the said inden-
ture and this certificate are truly recorded in my office, I have
hereunto subscribed my name the 3d day of September, 1832.
Samuel Woodson, Clerk Hopkins County Court."

The Revised Statutes provide that deeds for the conveyance
of real estate within this State may be " acknowledged or
proved without this State and within the United States or their
territories, or the District of Columbia, in conformity with the
laws of such State, territory or district : provideJ, that any
clerk of a court of record within such State, territory or dis-

NOVEMBER TERM, 1853. 17

Sisk V. WoodrufF.

trict, shall, under his hand and the seal of such court, certify
that such deed or instrument is executed and acknowledged or
proved in conformity with the laws of such State, territory, or
district." R. S. ch. 24, § 16. The act of the 22d of February,
1847, declares, "That all deeds and conveyances of lands lying
within this State, may be acknowledged or proved" before
"any clerk of a court of record, mayor of a city, or notary pub-
lic ; but when such proof or acknowledgment is made before a
clerk, mayor, or notary public, it shall be certified by such
officer under his seal of office." The certificate in question was
not sufficient proof of the execution of the deed under either of
these provisions. It was not verified by the seal of the clerk ;
nor did he certifiy that the deed was executed and acknowl-
edged in conformity to the laws of Kentucky. But these pro-
visions have no application to the case. They relate exclusively
to conveyances of lands lying in this State. This deed was
executed in another State, and conveyed lands there situated. The
execution of the deed could not be proved by the certificate of
any officer. It should be proved by the testimony of a witness
familiar with the handwriting of the grantor, there being no sub-
scribing witness to the instrument. The deed was improperly
admitted in evidence.

Third. The plaintiff read in evidence the record of the pro-
ceedings had in an action of ejectment pending in the circuit
court of Hopkins county, Kentucky, showing that the heirs of
Ninian Edwards, on the 16th of March, 1848, recovered judg-
ment against Levi Woodrufi" for certain premises, described as
"fifty acres of cleared and arable land, and fifty acres of wood-
land, lying on the waters of Caney Fork of Tradewater, in the
county of Hopkins." It appeared from the record that Levi
Woodruff pleaded not guilty, and that the issue was tried by a
jury. The plaintilT then introduced evidence tending to show
that the land recovered in the action of ejectment was the
same conveyed by the defendant to Robert Woodruif. Tlie
plaintiff then read in evidence a patent for the land in ques-
tion, from the State of Kentucky to the trustees of Logan Semi-
nary, bearing date the 17th of May, 1802. He also read in
evidence a deed of the same land from the trustees of Newton
Academy to Ninian Edwards, bearing date the 26th of November,
1808. For the purpose of showing the authority of the trustees
of Newton Academy to make the conveveyance to Edwards, the
plaintiff introduced a copy of an act of the legislature of Ken-
tucky, passed on the 27th of December, 1806, providing that
Logan Seminary and Newton Academy should thereafter consti-

18 MOUNT ^^ERNON.

Sisk V. WoocTrufi".

tute but one corporation, under the name of Kewton Academy.
This paper was certified by the secretary of state to be a true
copy of an original law on file in his office. The conclusion of his
certificate was as follows :

"In testimony whereof, I have hereunto placed my name and
the seal of my office, at Frankfort, on the 81st day of January,
in the year of our Lord one thousand eight hundred and fifty, and
in the 58 th year of the commonwealth,

"Secretary's Ofiice, State of Kentucky.

"Joshua F. Bell, Secretary of State."

The law of Congress of the 26th of May 1790, provides.
"That the acts of the legislatures of the several States shall be
authenticated by having the seal of their respective States affixed
thereto." The act in question was not so verified as to be
admissible in evidence under this law of Congress. It was not
authenticated by the seal of the State of Kentucky. The seal of
the secretary cannot be regarded as the seal of the State. The
case shows that the State has a different seal, and the act should
have been certified under it.

But it is insisted that the record of the proceedings in the
action of ejectment showed an eviction of Woodruff by para-
mount title, and therefore that the other evidence introduced
to prove title in the heirs of Edwards Avas wholly unnecessary.
Tliis presents a question of some importance, respecting which
there is some diversity of «pinion. In order to maintain an
action on a covenant of warranty, the plaintiff must show not
only that he has been evicted from the land, but that the
eviction was under an adverse title superior to that derived from
the warrantor. Where the warrantor is notified of the pen-
dency of the action of ejectment, and requested to defend the
same, the record of recovery furnishes evidence that the evic-
tion Avas under paramount title. If he appears and defends the
action of ejectment, the recovery is conclusive evidence of
a breach of the covenant of Avarranty. If he has notice and fails
to defend the action, the record is conclusiA^e eA'idence of
eviction under superior title, unless he shows that the judgment
was obtained by collusion or negligence on the part of the
defendant in ejectment, or upon a conveyance made by the
defendant himself. («) On Avhom does the law cast the burden
of proof, Avhere the warrantor had no notice of the pendency of
the action of ejectment ? Some ['courts hold that the record
furnishes prhna facie evidence of an eviction under valid title,
and thereby compel the Avarrantor to prove affirmatively that
he has not broken his covenant. Paul v. Witman, 3 Watts &

(a) Harding r. Larkiii, 41 111. E. 414.

NOVEMBER TERM, 1853. 19

Sisk r. Woodrnft'.

Sergeant, 407 ; Pitkin v. Leavitt, 13 Verm. 379 ; King v. Ke^v's
Adm'rs, 5 Ham. 154. Other courts require the plaintiif to prove
hj evielence dehors the record, that the judgment Avas founded
upon an adverse and superior title. It is held in the following
cases, that the burden of proof is on the plaintiff: Brooker's
Adm'r v. Bell's Ex'rs, 3 Bibb, 173 ; Prewit v. Kenton, ib. 280 ;
Devour v. Johnson, ib. 409 ; Cox v. Strode, 4 ib. 4 ; Gaither v.
Brooks, 1 A. K. Marshall, 409 ; Stephens v. Jack, 3 Yerger,
403 ; Fields v. Hunter, 8 Miss.' 128 ; Salle v. Light's Ex'rs, 4
Ala. 700 ; Graham v. Tankersly, 15 ib. G34 ; Bond v. Ward,
1 Nott & McCord, 201. See, also, Hamilton v. Cutts, 4 Mass.
349 ; Cooper v. Watson, 10 Wend. 202 ; and Miner v. Clark,
15 ib. 425, The weight of authority in this country seems to
favor this conclusion. We regard it as much the best rule. It
is a familiar principle of laAV, that a man shall not be bound by
a judgment pronounced in a proceeding to which he is not a
party, actually or constructively. He should be allowed to appear
in the case and adduce evidence in support of his rights, before
he is concluded by the judgment. If a warrantor has no notice
of the action against his grantee, and no opportunity of showing
therein that he transferred a good title, he cannot in any sense be
considered a party to the action, and therefore ought not to be
bound by any adjudication of the question of title. But if he has
notice, he may become a party to the suit ; and it is his own fault,
if his title is not fully presented and investigated. He then has
an opportunity of sustaining the title he has warranted, and de-
feating a recovery by the plaintiff in ejectment. If he fails to do
this successfully, he is concluded from afterwards asserting the
superiority of that title, and compelled to refund the purchase
money with interest. By giving the warrantor notice, the de-
fendanc in ejectment may relieve himself from the burden of
afterwards proving the validity of the title under which he
is evicted. But if he neglects to give the notice, he must
come prepared to prove on the trial of the action of covenant,
that he was evicted by force of an adverse and superior title ;
in other words, he must show that the warrantor, by appearing
and defending the action of ejectment, could not have prevented
a recovery. This rule imposes no hardship upon a party. The
giving of notice subjects him to but little inconvenience. It by no
means follows that a judgment in ejectment against a grantee is
founded upon the validity of the title derived from the grantor.
It may be obtained by collusion, .by a failure of the defendant to
make proof of the title under which he entered, or upon a con-
veyance from him, or under a tax title originating in his own de-

20 MOUNT VERNON.

The Belleville, «fcc. Railroad Co. v. Gregory.

fault. There is no good reason for requiring a warrantor to sliow
in the first instance, that his covenant has not been broken. In
this case, Sisk had no notice o£ the pendency of the action of
ejectment ; and the record of the proceedings had therein was
only evidence of the eviction of Woodruff. It was incumbent on
the latter to prove in addition, that the eviction was under title
paramount, (a)

The judgment is reversed, and the cause remanded.

Judgment reversed.

(«) Brady V. Spurck, 27 111. R.479.

The Belleville and Illinoistown Railroad Company, plain-
tiff in error, v. Richard A. Gregory and Wife, defendants
in error.

ERROR TO ST. CLAIR.

In seeking for the intention of the legislature, as expressed in any por-
tion of a law, it is proper to examine the whole law.

The grant of a right to a railroad company to extend and unite with any
other railroad in this State, gives a general authority to extend to any
other road within the prescribed limits.

If one part of a law is designed to limit or explain another, it must
appear to have been framed with that intention.

That provision of the constitution which declares that no private or
local law shall be passed which embraces more than one subject,which
must be expressed in the title, cannot be evaded by declaring such an
act to be a public law.

A law which authorizes the construction of a railroad, with a branch
or extension, the purchase of land, and the making of coal beds
thereon, and the purchase or lease of a ferry franchise, embraces but
one subject.

This was an action of trespass brought by Gregory and wife
against the railroad company, for entering upon the lands of
Gregory, making embankments thereon, &c. The company by
plea in defense, set up the grant by the legislature, the appoint-
ment of commissioners under the law to procure a condemnation
of the right of way over the lands in question, the tender of the
damages assessed, the refusal to accept, &c., and that the com-
pany entered upon the lands, as they lawfully might, &c. To this
plea a demurrer was filed.

The cause was heard before Underwood, Judge, at August
term, 1853, of the St. Clair Circuit Court. The demurrer was
sustained ; the plaintiff below waived the execution of a writ
of inquiry, and took judgment for one cent damages, and costs.

NOVEMBER TERM, 1853. 21

The Belleville, &c. Railroad Co., v. Gregory.

The railroad company brought the cause to the Supreme Court.
G. KoERNER, for phiintiif in error.

S. Breese, for defendants in error.

Catox, J. The first section of the charter creates the "Belle-
ville and Illinoistown Railroad Company" a body politic and
corporate. (a) The second section authorizes the company to
construct a railroad from Belleville to Illinoistown. The third
section contains a grant of powers necessary for the execution
of the work. The fourth section provides that the company
may obtain the right of way, in case o£ disagreement with
the owners, in the mode prescribed by the act relating to the
rights of way approved March od, 1815. This section, however,
subsequently provides that the governor shall appoint three com-
missioners to assess the damages to the owners of lands, &c.
taken for the road, and it requires the commissioners to deliv-
er their award to the company, "to be recorded by said corpora-
tion in the circuit clerk's office of St. Clair county," when
the title to the land thus condemned shall be vested in the corpor-
ation, provided that notice of the intention of the company to
apply to the governor for the appointment of the commissioners
shall be first published for thirty days in some newspaper printed
in St. Clair county. This section also provides, that the taking
of an appeal shall not affect the possession ot: the company,
and that no appeal by the owner of the land shall be allowed,
or writ of error prosecuted, unless the owner shall stipulate that
the company may enter upon and occupy the land "upon said
company giving bond and security, to be approved by the
clerk of the circuit court of the county of St. Clair, that they
will pay to the party appealing or prosecuting such writ of
error all costs and damages that may be awarded," &c. The
fifth section fixes the capital stock of the company at one
hundred thousand dollars, with authority to the stockholders to
increase it to the amount expended on said road. The sixth
and seventh sections provide for a board of directors, their
electibn, meeting, &c. The eighth section requires the office of
the company to be located in the city of Belleville. The
ninth, tenth, and eleventh sections relate to the mode of oper-
ating the road. The twelfth section provides for crossing other
roads, watercourses, &c. The thirteenth section relates to
dividends. The fourteenth authorizes the company to pur-
chase land and to work the coal beds therein, and for that purpose

(a) Laws of 1852, p. 114.

ILL. R. VOL. XV. 3

22 MOUNT VERNON.

The Belleville, &c., Railroad Co. v. Gregoiy

tliey may buy out other companies or lease their tracks, rights,
and privilegos, "and may make, have, use, and maintain any and
all branch roads by said company deemed necessary in transact-
ing their business, coiidemning all lands and ways therefor as
herein above provided." This section also authorizes the com-
pany to purchase or lease a ferry franchise. The fifteenth section
authorizes the city of Belleville and the county of St. Clair to
subscribe stock in the corporation. The sixteenth section pre-
scribes penalties for injuring the road, &c.

The seventeenth section is one under Vv'hich the company claim
the right to extend their road to and unite it with the Chicago and
Mississippi Railroad at or near the city of Alton, and in these
words : —

"Said company shall have the power to extend to and unite its
road with any other railroad now constructed, or which may
hereafter be constructed in this State, and for that purpose full
power is hereby given to said company to make and execute such
contract with any other company as will secure the objects of such
connection."

The two remaining sections authorize the company to borrow
money and limit the time within which the road shall be com-
pleted.

Upon the construction of this seventeenth section, must depend
the decision of the question now presented. In seeking for the
intention of the legislature as expressed in any portion of a law it
is eminently proper to look into the whole laAv, as one portion
may frequently be designed to extend, qualify, or limit another
portion. Hence I have stated the substance of the whole act, so
far as it can possibly affect this question.

It is undoubtedly true, that the primary object of the legis-
lature in the passage of this charter, and that which was
■ most in their contemplation, was to provide for and secure the
construction of a railroad from the city of Belleville to Illinois-
town. The details of the bill are framed with direct reference to
that object. To induce this, the rights, privileges, and franchises
specified in the charter, were granted to the corporation. These
constitute the consideration offered to the company to induce
them to construct the work, and for these the public was to
derive a benefit in the use of the road. By accepting the
charter, the company became obliged to construct the road between
the two specified points, at all events, and the legislature in the
charter said, if you will do this, you may, if you choose, extend
your road beyond the specified location. This right to extend
as well as the right to charge tolls, was undoubtedly designed
as an inducement to secure the construction of the road as

NOVEMBER TERM, 1853. 23

The Belleville, &c., Eailroad Co. v. Gregory.

specified. The one is as sacred a riglit as tlie otlier, and secured
by the same contract, and it is as much our duty to protect it.
The same may be said of the right to purchase and hold coal
lands, to Avork the coal-mines, and to build " branch roads."
The question is, how far did the legislature agree that the com-
pany might extend their road ? The charter gives this answer :
" Said company shall have the power to extend to and to unite its
railroad with any other railroad now constructed, or which may
hereafter be constructed, in this State." To undertake to prove
by argument what is the meaning of this provision, is to me
like an attempt to demonstrate by reasoning, how many inches
there are in a foot. The authority to extend is general, to any
other road, with this restriction, that the other road shall be "in
this State." The expression of this limitation shows how far
it was the design of the legislature that this power should be
limited. Otherwise the expressed limitation was worse than
useless. It is certainly possible that the legislature intended to
grant the right to extend this road to and unite it with any other
road which the company might select, within the prescribed
limits ; and if such was their design, what more appropriate lan-
guage than this could have been used to express that intention ?
Grrant the possibility of such an intention, and we are forced to
the conclusion that they did so intend, unless in some other
part of the act they have expressed a further limitation, showing
a different intention. A very ingenious effort was made, upon
the argument, to show from other provisions of the charter, that
the legislature did not mean what they said, but that something
less was intended ; that they intended to restrict the limits of
the right to extend within the county of St. Clair. I will
notice all the clauses of the charter relied on to establish this
limitation.

The first is the provision in the fourth section, that the awards
of the commissioners to assess the damages for the right of way,
should be recorded by the corporation in the circuit clerk's office
of St. Clair county. In the same section is also a provision, that
notice should be published in some paper in that county, of the
intention of the company to apply to the governor to appoint such
commissioners. And again, in the same section, is a provision,
that the possession of the company should not be affected by an
appeal from the award of the commissioners, and that the owner
of the land should not be allowed to take an appeal or prosecute
a writ of error, unless he would stipulate, that the company might
retain the possession, upon their giving bond with security, to be
approved by the clerk of the circuit court of St. Clair county,
conditioned to pay the damages, &c. It was assumed upon the

24 MOUNT VERNON.

The Belleville, &c., Railroad Co. v. Gregory.

argument, that these provisions made it necessary that all appeals
from the awards of the commissioners should be taken to the cir-
cuit court of St. Clair county, or at least, that the legislature so
understood it. This, however, by no means necessarily follows.
Nothing is said about the jurisdiction of such appeals, or the
mode of taking them. All of that is provided for in the law of
1&45, and is left unchanged by any thing to be here found. The
only object of this provision is to affect the question of possession,
in case an appeal is taken. By the law of 1845, if the com-
pany take an appeal, they must give bond that they will pay
the damages which shall be adjudged against them, and by the
charter, if the owner of the land takes an appeal, he shall stipu-
late that the company may retain the possession, upon their
giving a bond with security, to be approved by the clerk of the
circuit court of St. Clair county, to pay the damages, &c. If
they do not give this bond, the appeal proceeds the same as in
other cases, and the only effect is that they lose the possession.
The appeal is perfected without this bond which need not
necessarily be filed with, and which constitutes no part of the
appeal papers. The provision, then, that this bond must be ap-
proved by an officer in St. Clair county, in no way interferes with
an appeal to be taken in the circuit court of Madison county.
The office of the company is located in the city of Belleville, and
there may have been a propriety in requiring the bond which
entitles the company to the possession of the premises, to be ap-
proved by an ofilcer residing in the same place. So too of the
publication of the notice of an intention of the company to apply
to the governor for the appointment of commissioners. That had
no connection with an appeal, nor did it prevent the governor
from selecting commissioners from Madison, or any other county.
It was a matter of arbitrary discretion with the legislature to deter-
mme in what paper the notice should be published, and they might
as rightfully have selected a paper in Alton, or St. Louis even, as
in St. Clair county. Nor does the fact that the award of the com-
missioners is required to be recorded in the office of the clerk of
the circuit court of St. Clair county determine any thing as to the
location of the premises upon which the award is to be made. It
is true that such record might operate as constructive notice to
third persons of the right of the corporation to occupy the land,
but such notice is effectually given, by the actual possession of
the company, by the construction of the road. The most substan-
tial purposes of such record is the presei'vation of the evidence
of the title of the company, and it may have been thought con-
venient to have that preserved by a record at the place of the
home office of the compan3^

NOVEMBER TERM, 1853. 25

The Belleville, «&c., Railroad Co. n. Gregory.

Bat these suggestions are made rather with the purpose of
showing that there is no actual incongruity between the pro-
visions of the charter above adverted to, and a proceeding to
acquire the right of way in counties other than St. Clair, than
because I suppose they were framed with any particular refer-
ence to the exercise of the right conferred in the seventeenth
section, to extend the road beyond the termini specified in the
charter. All of the details of the bill were framed with particular
reference to the specified road, to secure the construction of
which was the primary object of the legislature in the passage
of the law, rather than with express reference to the exercise of
an undefined power, which is expressly granted, but in the
exercise of which the legislature have manifested no particular
interest ; and this being the case, it is remarkable, indeed, that
these details do not in some substantial way interfere with
the exercise of a power granted in such unlimited terms, and
without a particular reference to which they were undoubtedly
jDrepared. Even were the inconsistencies under such circum-
stances to the extent supposed, we should hardly be justified in
depriving the company of a right which is given in terms so
plain and absolute, that there is no room even to doubt of their
meaning, when there is no provision of the law which has the
appearance of a design to limit or explain them. One portion
of a law may undoubtedly quality, restrain, or even suspend
another portion, but in order to have that effect, it must appear
that it was framed with that intention. Can any one reason-
ably suppose that these provisions of the charter, providing for
the recording of the award, the publication of the notice, or the
approval of the bond, which may be done at any time after the
appeal is perfected, were inserted with the view of limiting the
power granted in the seventeenth section, so as to prohibit the
company from extending the road beyond the limits of St.
Clair county, when that section says they may extend to and
connect with any other road in this State? It is evident that
those provisions were inserted without any reference to or a
thought of this right of extension, which is inserted in a subse-
quent and separate part of the charter. Had such a restriction
been intended, it would have been provided for in other and
express terms, and not been left to a more than doubtful im-
plication, eminently calculated to deceive and entrap those who
were invited to expend their money upon the good faith of the
State in a public enterprise.

But we were referred to legislative history, to show that this
power of extension was not designed to confer so broad a right

26 MOUNT VERNON.

The Belleville, &c., Railroad Co. i\ Gregory.

as the language imports. Whatever else may have been
granted or refused by this legislature, it was not pretended on
the argument, nor am I advised that such is the fact, that they
or their predecessors ever refused to sanction the construction
of a railroad between Alton and Illinoistown, nor am I aware
that a charter specifying such a road was ever asked for. But
granting that it had been, and refused, and it would go but
very little way to prove that the legislature did not mean what
they have expressly declared. Nothing is more common, than
to see a measure defeated in one form to-day, and granted in
another, to-morrow. Nor can the presumed, or even well-known
views of all the members of the legislature, be allowed to repeal
an express provision of a law, or to control its construction.
The law alone can speak the legislative will. When the courts
shall be driven to the lobbies of the legislature to learn the sen-
timents of the members, for the purpose of construing the laws,
a new rule of construction will have been adopted. But above
all others, this class of legislation should be construed by its
OAvn terms, and without reference to extraneous circumstances,
and should be so framed as not to mislead or deceive those to
whom it is addressed. Here is a law, not designed for the
general government of our own citizens alone, who may be sup-
posed to be familiar with our legislative history and with the
general sentiments of their representatives, but it is also a
proposition for a contract, addressed to capitalists throughout
the world, ignorant as they must be of all these extraneous cir-
cumstances, and who must necessarily rely alone upon the
terms of the law, to determine the nature and character of the-
proposition. In such a case, justice to them and justice to the
integrity of the State, require that we should look to the terms
of the law for its meaning, and inquire how it was fairly under-
stood by those to whom it was addressed, and who have
accepted and acted upon it, and thus become parties to it.
There is, however, nothing in the history of our legislature, so
far as I understand it, to warrant the supposition, that had a
sanction to this particular route been asked for, it would have
been refused. No one can ever know what particular route it
was the design or expectation of the legislature would be taken
in the extension authorized in such general terms. Some mem-
bers may have expected one route would be taken, and some
another, while the minds of others were not fixed upon any
particular route ; and it is very certain that all those who voted
for the law had not agreed upon or contemplated any particular
route, else that route would have been adopted and specified.

NOVEMBER TERM, 1853. 2T

The Belleville, &c., Railroad Co. v. Gregory.

The road, to a certain extent, was agreed upon and specified ;
beyond that, an indifference is manifested, indicating that it
was not supposed to be prejudicial to the public interest to
extend it to and unite it Avith any other road in the State,
which the company might select. Whether we agree with the
legislature in the propriety of maldng so broad a grant of powers,
it is unnecessary to say. The responsibility is with them and not
with us.

But, even admitting that we felt the most perfect moral cer-
tainty, that the legislature never did intend to sanction this
particular extension, and it by no means follows, that we may
refuse to ' give effect to a power thus unintentionally granted.
Numerous statutes might be referred to, the effect of which is
entirely different from an3^thing which could have been
designed, and yet the courts must give them full effect. A ref-
erence to one will suffice. In 18J:7, our legislature passed a law
increasing the punishment for manslaughter, and repealing the
old law without any saving clause. The effect was to turn
loose all those who were guilty of that crime, and who were
not yet convicted ; and under its provisions several escaned.
I was obliged to arrest one judgment after conviction and set
the criminal free, and yet I never supposed, and no one ever
supposed, that the legislature ever contemplated such a result.
The design of the new law was to increase and not to remit
the punishment for that crime, and the remission was the result
of an oversight. If it be said that there was no legislative
intention on the subject, because the particular effect was not
thought of, the same reply is conclusive in the case before us.
Either the lesfislature did not think of the road beino; extended
to Mton, or else it was designed to grant the power to extend
it there. Had there been an affirmative intention not to allow
it, there is no room for doubt that it would have been expressly
prohibited or excepted, when the general power was granted.
Is not the terminus of the Chicago and Mississippi road at
Alton, in this State ? As a geographical fact it is so, and if
so, then the law says they may go there and unite with that
road. Is not a railroad as much a geographical designation as
a city, and suppose the charter had said they might extend to
and unite their road with any city in this State, might they not
have gone to Alton ? And yet the legislature as well knew
that there was a railroad at Alton as they knew that there was
a city there. Tell me why the power to go there now is not as
ample as it would have been then. It requires no more liberal
construction in the one case than in the other. Indeed it is
no construction at all, for there is no room for construction. It

28 MOUNT VERNON.

The Belleville, &c., Railroad Co. v. Gregory.

is simply repeating what the legislature has said. They have
granted the power, and it is our duty to protect it.

Something was said upon the argument about connections
with other roads, and that at most this seventeenth section
allows of but one extension for the purpose of connoting with
another road. There is certainly nothing in this case showing
that any other connection than the one mentioned in the plea
is contemplated. If the facts are, that the company had pre-
viously adopted another extension, for the purpose of connect-
ing with a different road, a replication should have shoAvn it,
when an entirely different question would have been presented.
We may know outside of the record, that in order ' to reach
Alton this road must cross the Ohio and Mississippi road ; but
the mere crossing of another road does not necessarily form a
connection with it, such as is contemplated in this section.
That means such an arrangement as to pass cars, freight, and
passengers conveniently from one road to the other. But there
is nothino; in this record tending to show that this risiht to
extend to and unite with another road, has been exercised and
exhausted.

The constitutional objection to the law remains to be con-
sidered. This we are of opinion is not well taken. The con-
stitution provides, "And no private or local law which may be
passed by the general assembly shall embrace more than one
subject, and that shall be expressed in the title." That this is
a private law, within the meaning of this provision of the con-
stitution, we have no doubt. It was to prevent abuses in this
class of legislation that this provision of the constitution was
adopted, and the legislature could not evade its effect by sim-
ply declaring the act to be a public law, as was done in this
case. The first inquiry then is : Does this law embrace more
than one subject ? The subject of this law is tlie incorporation
of a railroad company. No other subject is introduced into
the law, and but one company was created by it. Bat it was
urged that two roads were authorized to be constructed by the
law, if this extension is sustained. Even admitting that this
would make the law obnoxious to the constitutional objection,
the fact does not sustain the objection. With the extension to
Alton, there will be but one continuous road, and that on a
much straighter line than many other roads in the State If
we are to look at the line of road authorized to be constructed,
for the purpose of determining whether the bill embraces more
than one subject, we shall find this law as free from objection
as most others of a similar character, and much more so than
some others. Take for instance the law creatine- the Illinois

NOVEMBER TERM, 1853. 29

The Belleville, &c., Railroad Co. v. Gregory.

Central Railroad Company, providing for the construction of a
main trunk, and the Chicago and Dubuque branches, the former
of which projects from the main road, over two hundred miles
from its terminus at Chicngo, presenting the same objection in a
much higher degree. And there is another feature in that char-
ter which is not found in the one before us. That grants not
only the necessary powers for the construction of the road, but it
also contains a grant to the company of over two and a half mil-
lions of acres of land. There would be much more propriety in
saying that here are two distinct subjects contained in the
law, and yet a little reflection will convince us that even that law
contains but one subject, and that is the incorporation of a com-
pany for the construction of a railroad, to promote which object
alone all of the various provisions are introduced. Much less
plausible objections, however, are urged rgainst the charter now
before us. Should we hold this law to be unconstitutional for
the reason urged, but few railroad charters in this State could
survive the test.

The title of the bill is : "An act to incorporate the Belleville and
Illinoistown Railroad Company." This is not only a literal, but it
is also a substantial compliance with the constitution. The sub-
ject and the object of the law was to incorporate a railroad com-
pany, the name of Avhich is distinctly given in the title of the bill.
But the name of the company does not give a full description of
the road authorized to be constructed. There is no constitutional
provision requiring that this should be done. Should we require
that, it would be equally necessary to require the title to state all
of the other powers granted by, or provisions contained in the
charter, for they are as much a part of the object of the law, and
thus the title would have to be nearly as long as the law itself,
else some one might complain that he was misled by it. There is
probable not a charter of any kind in the statute books which is
not liable to this objection. The "Illinois Central" gives no
accurate idea of the location and extent of that road and its
branches, and the "Chicago and Mississippi" would apply equally
to any of the six or seven roads extending from Chicago to the
Mississippi river, and the "Ohio and Mississippi" tends actually
to mislead as to the location of that road, for it nowhere touches
the State of Ohio or the river having that name.

This provision of the constitution must receive a fair and rea-
sonable construction ; one which will repress the evil designed to
be guarded against, but which, at the same time, will not render
it oppressive or impracticable. The names of corporations have
ever been arbitrary or fanciful, and they probably ever Avill be.
They most generally, it is true, give some idea of the purposes of

30 MOUNT VERNON.

Harding et al, v. Clark.

tlie corporation, but necessarily in the most general way. We
are of opinion that this law embraces but one sut)ject, which
is expressed in its title and that it must be sustained.

The circuit court erred in sustaining the demurrer to the plea,
and its judgment must be reversed, and the cause remanded.

Judgment reversed.
I
Treat, C. J., dissented.

(a) Supervisors, &c., t\ t^eopleexrel &c. 25 111. R. 181; O'Leary y. Cook
Co., 28 III. R. 588 ; Cooley on Const. Lim., pp. 81, 147, 14S.

Rachel M. D. Harding and Thomas Boswell, plaintiffs in
error, v. Mary Clark, defendant in error.

ERROR TO MASSAC.

On an issue raised as to the trutli of an affidavit, iipon wliicli an attach-
ment was issued, the declarations of the defendant made after the ser-
vice of the attacliment, will not he allowed to contradict statements
made before or at the time of the service of the writ.

J. Jack, for plaintiffs in error.

T. G, C. Davis, for defendant in error.

ScATES, J. The affidavit for the attachment stated that
defendant was indebted in the sum of seventy- two dollars for
rent, and that there is reason to believe that defendant is
about to remove and depart from this State, with the intention to
have her effects removed from this State, and is about disposing
of her property for that purpose. Issue was taken upon the
affidavit.

The proofs showed, that defendant had inquired the road
and crossing of the Mississippi that would be best in going
to Missouri, and declared her intention to move there, some week
or two before the suit was brought ; she inquired if there Avas a
land-office there ; she also said she had an intention of mov-
ing to Johnson county, Illinois, and buying an improvement, but
had given that up ; that she was able to buy the place on which
she lived, but Avould not, as she was dissatisfied with the

NOVEMBER TERM, 1853.

Jilue V. Leathers,

country, and was going to Missouri ; and was ready to go as soon
as the roads got a little better, and she had settled up her affairs.
It further appeared that she had sold her stock of hogs and some
chickens.

These declarations of intention of going to IMissouri were repeat-
ed to the constable when he served the attachment.

Defendant called witnesses who had heard her repeat similar
declarations of her intentions to leave the country and to enter
Harding's improvement in the State, both before and after the ser-
vice of the attachment; sometimes talking of going to Pulaski,
and sometimes to Thebes, in Alexander county. She had a con-
tract for hauling a quantity of wood with her oxen and wagon,
which was not completed, and in which they were employed
at the time of the levy, and that she had not made any prepara-
tion for going.

Upon the facts the court found the issue for the defendant,
which is assigned for error.

We are of opinion that the proofs clearly sustained the issue for
the plaintiffs.

Most of the declarations deposed to by the witnesses of the
defendant, were made after the service of the writ, or are with-
out date as to the time when made. We cannot allow any
Aveight to those declarations, in contradiction of what she had
said before and at the service of the writ, otherwise it would
be easy to remove the grounds of the attachment. Disregard-
ing that portion of her proofs, and her intention to remove is
clear and manifest, and v/e think the issue should have been
found for the plaintiffs.

Juds:mcnt reversed.

SoLOMOX Blue, plaintiff in error, v. William Leathers,
defendant in error.

ERROR TO GALLATIN.

Where two parties agree, that one shall furnish a farm and a certain
amount of teams and labor, and tlie other shall give labor and manag e
the farm, and the crop to be divided between them, such an agree-
ment does not constitute a partnership.

Cause heard before Marshall, Judge.

32 MOUNT VERNON.

Blue V. Leathers.

R. S. Nelson, for plaintiff in error.
R. F. WiNGATE, for defendant in error.

ScATES, J. By consent tlie parties employed a third per-
son to state their accounts and strike a balance between them ;
both parties rendered their accounts accordingly, and the balance
was ascertained and announced to the parties, without exception to
it by either, or any express promise to pay by Blue, against whom
a balance of $87.97 was found. Before separating they agreed
that a small item of some four or five dollars had been over-
looked, and Leathers agreed to adjust it when the balance was
paid.

This settlement was proven upon the trial, and at the instance of
Leathers the court instructed the jury that an action would lie upon
it, without an express promise to pay the amount found by it.
To this instruction objection is made here, on the ground that the
evidence established a partnership between the parties in the mat-
ters of account taken into that settlement, and therefore an express
promise to pay the balance was necessary, to sustain an action at
law. This court has so decided in Chadsey v. Harrison, 11 111.
R. 156, and in Davenport v. Gear et al., 2 Scam. R. 498; and
also in New York, Casey v. Brush, 2 Caines R. 295 ; Westerlo v.
Evertson, 1 Wend. R. 533. An express promise is necessary to
sustain an action at law, for such a partnership balance. But
this rule has no application to this case ; the question as to the
existence of a partnership was submitted to the jury, among oth-
ers, and from a general verdict for plaintiff, we may infer that
they found for the plaintiff' on this ground also, unless misled by
the instruction of the court, as applicable to partnerships. But
even in this point of view it would be erroneous only as an ab-
stract proposition, for the testimony very clearly shows there was
no partnership. There was a joint interest only. Blue agreed
to furnish his farm and a certain amount of teams and labor.
Leathers was to labor and manage the tillage, and the parties
were to divide the crop in the proportion ol: two-thirds to Blue,
and one-third to Leathers. This does not constitute a partner-
ship, although it is a joint enterprise, (a)

Here is no trading, no risks, no contingent profits, but sim-
ply an agreement for joint tillage, and a division of the produce
of the farm in kind. Instead of making this division in kind,
Blue, by the request of Leathers, sold Leathers' part of this

(n) Morton v. Gate\j, 1 Scam. R. 212 ; Ahvood r. Ruckmau, 21 111. R.
200; Dixon -y. Nicolls, 39 111. R. 384; Chase r. McDonald, 24 111. R. 240;
Parker r. Fergus, 43 111. R. 437.

NOVEMBER TERM, 1853. 33

Cummins v. Cummius.

crop along with his own. The settlement between the parties
included a division of the purchase-money, and items of expense
in the tillage, harvesting, and marketing the crop, together it may
be with other matters not embraced within the contract. The
parties did not go into proofs upon the trial, as to all the items
embraced in this settlement, and we are therefore unable to
say that the computation of the jury is erroneous and contrary
to the evidence. The witness who bought the crop and made
the settlement states the balance found and the amount he
paid on the crop at that time, but does not state that it was
for the whole or only a part, or whether he paid any part before.
The items and their respective amounts are not given us. At
the time he made the settlement he paid $150, one-third of
which would make Leathers' part only $50 ; yet the balance
amounted to $87.97 ; showing the necessity of introducing full
proof, to enable us to recompute the account in order to detect
an error in the computation of the jury. Thei'e were some iew
items in proof before the jury not included in that account, and
which, doubtless reduced the verdict below the amount of the
settlement ; but we are unable from the proofs in the record to
determine that there was error in the record.
Judgment af&rmed, with costs.

Judgment affirmed.

John H. Cummins, plaintiff in error, v. John D. Cummins,
defendant in error,

ERROR TO JOHNSON.

In chancery, an answer is evidence only so far as it is responsive to the
allegations of the bill.

When matters in discharge are stated in the answer, tliey must be
proven, unless incases where tlie same matter or statement that cre-
ates the charge also shows its discharge.

T. G. C. Davis, for plaintiff in error.

H. B, Montgomery, for defendant in error.

ScATES, J. This bill was filed by the ward against the tes-
tamentary guardian for an account, charging that lands and
moneys had come into his hands as guardian.

The guardian answers, admitting that in recovering the
estate of the ward out of the hands of the executor of the will,

84 MOUNT VERNON.

Cummins v. Cummins.

he had acquired title to certain lands purchased under an exe-
cution on a judgment against the executor for $418.75, and
conveyed to him on 7th November, 1843. He admits assets
to the value of this land to be $427.12, and then states and
sets up an account for maintenance and education and ex-
penses exceeding the assets.

The cause was heard upon bill, answer, replication, and ex-
hibits, without proofs, and the bill dismissed.

This is erroneous, according to the rules of pleading ; the
answer is evidence only so far as it is responsive to the allega-
tions of the bill ; so far as matters in discharge are stated in the
answer, they must be proved, unless in cases where the same
matter or statement that creates the charge, shows also its dis-
charge, (a) Here it was a distinct and independent matter, and
should have been proven. 12 Pet. R. 191; 1 Greenl. Ev. § 351;
2 Story's Eq. Jur. §§ 1528, 1529. Upon these principles com-
plainant was entitled to a decree for an account.

The dismissal was erroneous in another respect. Courts of
equity exercise a strict supervision over the expenditures of
guardians, requiring the application of the income of the estate
to the support and education of the ward to be satisfactorily
shown, so far as needed for that purpose, and the surplus, if
any, to be kept productive. But they seldom sanction the use
of the principal, even for these purposes, unless a very clear
case of its necessity is made out, to the court, for so ordering.
2 Fonbl. Eq. 473, 474; Davis, Adm'r, ^;. Harknesse e/ al.
1 Gilra. R. 177; Davis e/ al. v. Roberts, 1 S. & M. 553.

Much stricter still is the rule when a guardian breaks in upon
the principal, without first obtaining an order of a proper court,
authorizing him to do so. 1 Gilm. R. 177.

The decree is reversed, and the cause remanded.

Decree reversed.

(a) Stark and wife z\ Hillibut, 19 111. E. 344; Clements v. Moore, 6 Wa 1.
U. S. R. 299.

NOVEMBER TERM, 1853.

Blancliard et al. i\ Morris.

HiEAM Blanciiard, ct al., plaintiffs in error, v. Wlliam Mor
Ris, defendant in error.

ERROR TO PERRY.

Tlic court will not interfere with the province of a jury upon slight dif-
ferences of opinion ; each particular case will be considered, and if
the Courtis well satisrted that the damages awarded are too high,
relief may be granted by giving a new trial.

See opinion of the court for a statement of the case.

P. B. FouKE, for plaintiff's in error.

H, B. Montgomery, for defendant in error.

Scates, J. The defendant recovered a judgment for $700
for an assault and battery committed upon him, -svhich is ob-
jected to here as excessive. There is no rule for revision of
verdicts and judgments more indefinite and indefinable as a
rule than this in relation to excessiveness of damages, and more
especially for injuries to the person and reputation, personal
and professional.

In reviewing cases of this character, the courts have made
some vain effort to prescribe and fix bounds and define, but
these attempts leave the rule as uncertain and intangible as
ever. Nor is it capable of greater certainty T\'hile it remains
%vithin the province of a jury to fix and ascertain the compensa-
tion according to varying circumstances. It must, under the cir-
cumstances of each case, be left to the court to say, -whether the
amount is excessive, and to apply a corrective. The only attain-
able certainty is, that courts will not interfere with the province
of the jury upon slight diff'erences of opinion. It can only,
therefore, be in those cases where the court is well satisfied
that damages are too high under the circumstances of the par-
ticular case, that relief of this character will be given. How-
ever unsatisfactory this may be, it is not only not worse than an
arbitrary, graduated tariff of compensations for injuries, without
regard to the ever changing circumstances of parties, and the
manner, mode, and degree in the commission of them. And it
would be better to withdraw all judicial supervision, and leave
the question entirely to the jury than to adopt an inflexible
rule of compensation. Men in the jury box, as well as out of

36 MOUi^T VERNON.

Blanchard et al. v. Morris.

it, may, and doubtless are, sometimes influenced by feelings of
sympathy and of indignation. But the men of the vicinage
are, of all others, the best able to fix upon a true and just
standard of these discretionary compensations in each case.

I make these remarks, because the damages aro more in this
case than are usually given in cases of bodily injury, and here
there was none. Yet Ave cannot say they are excessive under the
circumstances ; for the proofs show that threats, violence,
and imprisonment, were accompanied by mental fear, torture,
and agony of mind.

The defendant is but a youth, and is a cripple. The plaintiffs
and one of the witnesses accuse him of stealing five or six hun-
dred dollars, and demand of defendant a confession of an infam-
ous crime and the money under pain of death. By their mode of
proceeding they intend, without injuring the body, to operate upon
and injure the mind ; they blindfold him ; pretend to bleed him ;
and for the purpose of afTecting his mind with fear, under the
belief that he is bleeding to death, they pour water from a
coffee-pot into a basin to deceive him by the sound. This tor-
ture is successfully practised until syncope supervenes. This is
renewed by an attempt to hang defendant. Under this system of
mental torture, he gives them thirteen or fourteen dollars. The
accomplice witness calls this part of the stolen money, and the
fainting a pretense.

From the proofs we have no reason to doubt but that the money
belonged to the defendant, and was extorted from him bv the de-
gree of terror with which he was inspired by the belief that he
was slowly bleeding to death at one moment, and was about to
be hung the next.

The jury, under the circumstances, have adopted a standard of
compensation by its severity, protective of the innocent, the young,
and the infirm ; and we cannot condemn it as excessive.

The instructions given and refused present no variance from
the laws of trespasses to the person.

Objection is made to the refusal of a nevf trial, on the ground
that defendant Hill was not shown in the court below to have par-
ticipated with the others.

We cannot doubt that his object in being there, Avas in com-
mon Avith those who acted ; that he went there Avith them, and
by his presence was aiding and abetting. The common design
was made knoAvn to this defendant by the witness, and tlie
number and co-operation of all forbade that resistance by the
defendant that would or might ha\^e called for more active par-
ticipation by Hill. The circumstances clearly inculpate Hill ;
if he had been a mere spectator, he might easily have shown it

NOVEMBER TERM, 1853. 37

Ayers v. Gricler.

by the witness, who was a chief actor ; failing to do so, his guilt
is not left doubtful.

Judgment affirmed.

Thomas P. Ayers, plaintiff in error, v. William M. Grider,
defendant in error.

ERROR TO WILLIAMSON.

Where a party acting as constable arrested another, and took from him
a knife and other articles, and the arrested party accused him of theft,
if the words spoken are understood to relate to the arrest, the words
are not actionable.

See opinion for statement of the case.

J. Dougherty, for plaintiff in error.

R. S. Nelson, for defendant in error.

ScATES, J. The words charged are that Grider stole the knife^
and money and purse of Ayers ; that he took his knife and money
and purse, and that these last were spoken in a slanderous sense,
imputing theft, and were so understood by the hearers.

By the proofs it appears that Grider was town constable in
Marion, and as such, had, a few days before, arrested Ayers in
the public square for a breach of the town ordinances, and took
away his knife, which he afterwards gave to one Pulley. Grider
Avas in Pulley's store, when Ayers came in and said to him, " Go
and take up those men in the public square ;" he replied he would
not. Ayers rejoined, you shall, for you took me up, and stole my
knife and my money." Gridersaid, " IhandedPulley your knife,"
and the charge of stealing was understood by the hearers to relate
to the arrest. The quarrel continued ; Ayers threatened to cow-
hide Grider, &c.

The court refused to instruct the jury, "that if the words proven
to have been spoken by the defendant of the plaintiff were spoken
about and in relation to a known act, and that act in law is not a
felony, which is known to the bystanders, they will find the defend-
ant not guilty ; and also refused a new trial.
ill. r. vol. XV. 4

88 MOUNT VERNON.

Ayers v. Gridei-.

The bill of exceptions presents an uncertainty that makes it diffi-
cult to determine whether we are to look at this instruction as a part
of the record here. In giving a history of the trial the proofs are
set out, and the instructions asked and given or refused; it then
proceeds, "which instructions the court then and there refused to
give to the jury, to which refusal of the court so to instruct the jury
the defendant then and there excepted ; but did not excspt until a
motion was made for a new trial." If it was then and there ex-
cepted to at the trial as stated, we must treat it as a part of the
record; if not until the motion for a new trial was made, then it is
not a part of the record and we cannot examine it, as it should have
been taken " during the progress" of the trial. Rev. L. 1845. p.
416, §21.

The instruction asked is clearly sustained by decisions laying
down the rule contained in it, and should have been given by the
court, as the proofs clearly presented a case for its application.
Thompson t;. Bernard, 1 Camp. R. 45 ; Brite v. Gill, 1 and 2 Mon-
roe, R. 65 ; Gill v. Bright, 6 Monroe, 130 ; Van Rensellaer v.
Dole, 1 John. Gas. 279 ; Ediew. Brooks, 2 VVhart. Dig. 598, § 36 :
Christie v. Cowell, Peak's N. P. C. 4 ; Snag v. Gee, 2 Coke's R.
300, ed. 1826 ; Jackson ^;. Adams, 29 Eng. Com. L. R. 371 ; 2
Bing. N. Cas. 402.

This court, in the case of McKee v. Ingalls, 4 Scam, 32, held
principles which embrace the reason of this instruction. Actiona-
ble words import malice, and that is the gist of the action ; it is a
question of intention, therefore, sufficiently evidenced by the use of
actionable words, unaccompanied by explanatory words or circum-
stances. These, however, may show the intention to have been
innocent ; the presumption of malice is wanting, and no foundation
for the action exists.

In this light we regard the proofs in this case, and so it seems
to have been understood by all the witnesses who heard the charge.
Ayers called the taking of his knife, money and purse fi'om him,
when he was arrested by Grider, as constable, stealing. It might
constitute a trespass, but not a felony. It is true that an officer
can steal from his prisoner as well as from any other person, but
the taking should be accompanied by other evidence of the animo
furandi^ than by openly, and it may be forcibly, disarming the
prisoner of his weapons, and with them his money or other valua-
bles. He could not commit a theft of his prisoner by any open
despoliation of his goods in his presence. He could commit both
trespass and robbery, but not larceny. The witnesses all under-
stood this charge of stealing to have reference to a taking, at the
time of the arrest and in the public square of the town.

NOVEMBER TERM, 1853. 39

Vaughan v. Thompson et al.

Under these circumstances no larceny could be committed, as
such a taking could at most only amount to a trespass, and there-
fore, being spoken in reference to such a transaction, and so
understood by the hearers, they were not actionable, and the court
should have granted a new trial.

Judgment reversed, and cause remanded for venire de novo.

Judgment reversed.

Joel Vaughan, plaintiff in error, v. John W. Thompson et al.,
defendants in error.

ERROR TO MASSAC.

Unless in cases where it appears that a justice has not jurisdiction, in
appeals, tlie circuit court will give the parties a trial upon the merits
of their controversy, without regard to forms or technicalities.

A justice of the peace has jurisdiction in an action against a constable,
for taking property not subject to levy ; and against a constable and
his sureties for the recovery of single damages for his malfeasance, in
taking such property.

Where forfeitures or penalties are imposed, and no form of action is
given, debt will lie.

This cause was heard before Denning, Judge, at October term,
1853, of the Massac Circuit Court.

J. Jack, for plaintiff in error.

T. G. C. Davis, for defendants in error.

Scates, J. The summons issued by the justice is this case
against Thompson, as constable, and the others as his sureties,
was on a demand not exceding one hundred dollars, for mal-
feasance in office. The account filed was for $99.00, being
three times the value of a certain mule, taken and sold by the
constable, which was exempt from execution. A copy of the
constable's bond was filed with the papers of the justice, on
the appeal to the circuit court. The circuit court dismissed the
suit, upon motion, for want of jurisdiction in the justice. This
is erroneous. The statute (R. L. 1815,325, § 66) provides,
that on appeals exceptions to the form or substance of the sum-
mons or proceedings before the justice, shall not be taken ; that
the parties shall stand in the same position there as in original

40 MOUNT VERNON.

Vaughan v. Thompson et al.

actions (§ 68) ; they shall be heard in a summary -way without
pleadings (§ 66) ; they shall have the right to use each other
as witnesses (pp. 320, 321, §§ 39, 40,41). The true scope,
spirit, and intent of the law is to give the parties a speedy,
fair, and full trial upon the merits of their controversy, without
regard to forms or technicalities, and have it determined
according to law and justice, Unless it shall appear that the jus-
tice of the peace had no jurisdiction, in which case it shall be dis-
missed (325, § 67).

This is not apparent upon the papers transcribed into this
record.

The same act, p. 316, § 17,11 14, confers jurisdiction expressly
for malfeasance, misfeasance, or non-feasance of sheriffs,,
coroners, or constables, where the amount claimed does not
exceed one hundred dollars. And again in the 118th section
of the same act, they shall have like jurisdiction, "if any special
damage shall arise to any party by reason of the neglect or
refusal to act, or the misfeasance or non-feasance of any
constable in the discharge of any official duty." And again in
the twelfth paragraph of seventeenth section they have juris-
diction given "in all actions of trespass on personal property,"
not exceeding one hundred dollars. Suits may be brought before
them on constables' bonds, where the demand does not exceed one
hundred dollars.

In construing these provisions, we disregard objections to either
form or substance in the summons and proceedings before the
justice, and may hear and determine the very right of the parties^
as in debt on the constable's bond to settle the liabilities of
principal and sureties, for malfeasance in office, by taking prop-
erty exempt from execution ; or as in trespass upon personal
property, against the constable alone for single damages ; noth-
ing but a want of jurisdiction in the justice should prevent the
circuit court from hearing and determining the controversy in a
summary way. This we hold to be the true spirit and meaning of
the statute.

We are of the opinion that the twelfth and fourteenth para-'
graphs of the seventeenth section, each confer jurisdiction. The
former for the trespass in taking property not subject to levy
and in Avhich single damages only could be recovered against the
constable, since the repeal of the act of the 4th of March, 1843
(repealed in 1845 ; see R. S. 469), giving this form of action
for the recovery of treble damages before justices. The latter
in the form of trespass or debt for the recovery of single dam-
ages against the constable alone, or against him and his
sureties, for his malfeasance in taking under color of his office,.

NOVEMBER TERM, 185B. 41

Leddo et al. v. Hughes.

property not liable to execution, in which single damages only
could be recovered. For we are of opinion that the sureties are
not liable on the bond for any more than the actual damages,
the statute not having charged them with the treble statutory
damages in the nature of a penalty.

Where forfeitures or penalties are imposed, and no form of
action is given, debt will lie. But the act imposing the penalty
of treble damages in this case, gives an action of trespass for
that purpose. R. L. 1845, p. 3U6, § 35.

Filing an account for and demanding treble damages, therefore,
will not oust the jurisdiction of the justice to hear and determine
the case, as in trespass against the constable alone, or as in debt,
against him and his sureties, for single damages.

So that the jurisdiction is clear, and the order of dismissal
' erroneous. («)

Judgment reversed.

(a) Campbell v. Couover, 3C 111 R. 64.

.<jrARMO Leddo et al., plaintiffs in error, v. William A. Hughes,
defendant in error.

ERROR TO PULASKI.

The lender of money to the master of a vessel, to aid in making
repairs, or to purchase supijlies, must see that the amount advanced is
reasonable and necessarJ^

The ports of the difterent States, under the maritime law, are, in respect
to each other, foreign.

The wages of seamen only become due upon a successful termination of
the voyage.

The maritime law has no application to flat boats, their pilots ornavi-
gators.

The lien given under our statute for repairing, &c., may arise upon co n-
tracts express or implied, and the acting master or supercargo ma y
bind the vessel ; but the party making the advances must show the
necessity for them, and the proper application of them.

This cause was heard before W. A. Dexning, Judge, and a
jury, at the October term, 1852, of the Pulaski Circuit Court.

The instruction asked for by the defendants in the court below,
and which the court refused to give, is as follows : "The captain
or supercargo of a vessel, as such, cannot bind the proprietors
■ of the cargo and of the vessel, except it be for work done, sup-
plies or materials furnished by mechanics, tradesmen, and others,
ior and on account of or towards the building, repairing, fitting,

42 MOUNT VERNON.

Leddo et al. v. Huglies.

furnishing, or equipping such boats or vessels, and wages of mar-
iners or watermen and others, employed in the service of such
boat ; and that a contract made by said officer of a boat for
other purposes not above enumerated, does not bind the owner."(a)

J. Dougherty, for plaintiffs in error.

W. J. Allen, for defendant in error.

ScATES, J. Hughes brought this action of assumpsit, for
money advanced to one Wallace, as master and supercargo of
two flat boats, loaded with staves, on the Ohio river, which be-
longed to the plaintiffs in error, and were bound for New Orleans,
where the plaintiffs reside.

The declaration alleges, that these boats were in a wrecked
condition, lying in the Ohio river, at the landing at South
Caledonia, and at the instance of Wallace, and in consideration
of the condition of the boats, the defendant in error loaned the
master and supercargo, for and on behalf of plaintiffs, and for
their special use and benefit, the sum of three hundred and fifty,
dollars, to purchase other flat boats for the reshipment of their
cargoes. And at the like instance and request of plaintiffs, and
in the consideration of the loan, and for the taking care of the
boats and cargoes by defendant for ten days, they agreed to pay
him the further sum of fifty dollars. There was also a general
count for money loaned, and another for work and labor, care
and diligence.

The evidence shows that these boats were loaded with staves,
a short distance above Caledonia, and were destined for New
Orleans, the residence of the plaintiffs, who were owners of the
boats and staves. Wallace was in charge as pilot, and was com-
pelled to put into the landing at Caledonia, on account of the
boats springing aleak, and sinking to a water level. Here the
boat hands became dissatisfied, and talked of leaving the boats,
and attaching them for their wages. Wallace had about thirty
dollars in cash with him, part of which he gave to his son, and.
sent him home.

Wallace remained with the boats about nine days, and having,
failed in getting money of others, he borrowed of defendant,
three hundred and fifty dollars, twenty-four of which the defend-
ant paid to the boat hands for wages, and the balance to Wal--
lace, who agreed to pay defendant fifty dollars for the use of
the money and for his care and labor for ten days in taking care
of the boats, upon condition that if plaintiffs did not

(a) This Statute is unconstitutional. The Hine v. Trevor, 7 Wal. U. S„
R. 555 ; The Belfast, 7 Wal. U. S. R. 624 ; see Williamson v. Hogan, 46 111.
R. 504.

NOVEMBER TERM, 1853. 43

Lcddo etal. v. Hughes.

arrive in ten days and refund the borrowed money and pay the
fifty dollars, that then the boats, staves, and tackle, should become
the property of the defendant, and should, in the mean time, be
at his risk as security. The plaintiffs arrived within the ten days,
but refused to pay the money, and afterwards replevied the boats,
staves, &c., out of the hands of defendant, who retained and
claimed them as his own under the contract.

The court, at the request of the defendant, instructed the jury,
that if Wallace, as supercargo, employed defendant to take charge
and care of the boats and staves for ten days, and that care was
necessary to protect the boats and staves from loss, &c., and
agreed to give him fifty dollars for that care, and the use of the
money for ten days, and that the defendant rendered the service
it would binding on plaintiffs.

The court so modified an instruction asked by plaintiffs, as to
make it in substance ; That if the defendant has wholly failed to
prove a promise of the plaintiffs "or their agent" to pay defend-
ant, they must find for the plaintiffs.

The court refused to instruct for plaintiffs, that the captain or
supercargo of a vessel could only bind the owner for supplies,
material, and work, necessary for building, repairing, fitting, fur-
nishing, or equipping, and the wages of those employed in the
navigation of the vessel.

The jury found a verdict for defendant for four hundred and
twenty-seven dollars and twelve cents. A new trial was
refused.

The special count for the loan to Wallace as master and super-
cargo, is evidently framed, and the revovery is had upon the prin-
ciples of the maritime law. That law empowers the master of a
vessel, in a foreign port, to have the necessary repairs of a vessel
made, and to purchase the necessary supplies ; and for these pur-
poses he may borrow money on the credit of the owner ; and the
lender will not be held responsible for its faithful application.
Arthur v. Barton, 6 Mees. & Wels. R. 188 ; approved Johns v.
Simons, 2 Ad. & Ell. K S. R. 424 ; Stonehouse v. Grant, ib.
431 ; Abbott on Shipp. 100, 170, n. 3.

It is however, incumbent on the lender to show the exist-
ence of the necessity. Abbott on Shipp. 107, 170, 171, note ;
The Ship Fortitude, 3 Sumn. R. 233 ; Arthur t;. Barton, supra ;
Webster et al. v. Seekamp ei al. 4 Barn. & Aid, R. 352 ; Carey
V. White, in Abbott on Shipp. 104-107. And the amount
must be shown to be reasonable, according to the existing
necessity. For the power of the master is restricted in amount
to the necessary wants of the ship ; and a great dispi'oportion
between those wants and the sum borrowed, would raise a pre-

44 MOUNT VERNON.

Leddo et al. v. Hughes.

sumption of fraud and collusion on the part of tlie creditor. This
strictness arises from the, facility of misapplication, and the temp-
tation to abuse, to which the power is incident. Abbott on Shipp.
170, n. 3.

The lender being present, has greater facilities for judging of
the extent of the amount, and so regulating his loan within rea-
sonable bounds.

It is shown that one hundred and sixty or two hundred dollars
would have purchased two new boats. But it is not shown that
the old boats could not be repaired ; nor what amounts would
have been needed for that purpose. Ship Fortitude, 3 Sumn. R.
233. The defendant advised Wallace to purchase new boats, and
it may be possible the amount of the loan was with that view ;
but even in that case, defendant has not shown that the sum loaned
was necessary. But I have met with no case that goes so far as
to authorize a master to abandon his vessel ; or sell it, and
purchase a new one with the proceeds of the sale, or to borrow
money for that purpose, either upon the credit of the owner, or
upon the hypothecation of the vessel v/recked. Nor do I believe
the law would sanction a loan for such a purpose, or confer such
powers upon a master, though under very strong and peculiar
circumstances of necessity, he might sell the vessel. See Abbott
on Shipp. 2 to 12, and notes.

This transaction cannot be sustained as a sale, therefore, even
had the form of action so presented the question ; nor can the
loan be sustained to a greater amount than may be shown to be
necessary to meet the wants for repairs, &c., under the maritime
law, as set forth in the special count. The pilot had thirty dol-
lars in hand, and only twenty-four is shown to be due to boat-
men ; how much more would have repaired the boat is left uncer-
tain; neither is there any satisfactory reason given why defend-
ant should be emploj^ed to take charge and care of the boats at
an expense of five dollars per day, while, for anything shown in
the record, Wallace and the crew still remained in plaintiffs'
employment. We cannot sanction such a power in Wallace to
substitute others, at the expense of the owners, to the performance
of the care, duty, and labor of himself and crew. While he pro-
fesses to act for his employers, it should not be merely in ease-
ment of his own duties.

It was objected under this count that this was to be consid-
ered as the home port of these boats, and the power of the
master only extended to foreign ports, and in the absence of the
owner. The ports in the different States are held to be, in
respect to each other, foreign, in the sense of the maritime law.
Chief Justice Marshall, in Selden v. Hendrickson & Pryor.

NOVEMBER TERM, 1853. 45

Leddo et al. v. Hughes.

1 Brock. R. 398, held that a master had the power, while in the
port of New York, to bind the owner, who lived in Richmond,
Va. , for repairs and necessary supplies ; and this we receive as
the settled doctrine. Arthur v. Barton, 6 Mees. & Welsh. R. 188,
approved in Johns v. Simons, 2 Ad. & Ell. N. S. 421 ; Stone-
house V. Grant, ib. 431.

There is still another objection to the loan, under the mari-
time law, so far as the payment of wages to boatmen is relied
on as an existing necessity. There is no proof that wages were
due. Freight is the mother of wages by that law, and they do
not become due upon a temporary interruption of the voyage, nor
in case of a loss of the vessel ; nor in case of desertion, but only
upon a successful termination of the voyage. Smith's Mer.
Law, 363, 366 ; Abbott on Shipp. 619, n. 1. There could,
therefore, have been no wages due to the boatmen, and conse-
quently this necessity did not exist.

The defendant, has, therefore, failed in establishing the neces-
sary facts and circumstances to charge the plaintiffs upon the
principles of the maritime law, with the contract of Wallace as
master.

But we are of opinion that the maritime law has no applica-
tion to these flatboats, their pilots and navigators ; even should it
be extended to the steamers and vessels engaged on the inland
navigation of the rivers and lakes. The Supreme Court of Mis-
souri, in Johnson v. Strader & Thompson, denied its application
to inland navigation. 1 Mo. Rep. 256. The flatboats in that
case were engaged in freight as common carriers ; in the case be-
fore us, the loading, as well as the boats, belongs to the plain-
tiffs.

It is also contended that the defendant is entitled to recover
under the two last counts, for money loaned and for work and
labor, &c. By the statute (R. S. of 1815, p. 71, § 1), a lien is
given to mechanics, tradesmen and others, upon boats and vessels
of all descriptions, whether built, repaired, equipped or running
upon any of the navigable waters of this State, for all debts con-
tracted by the owner, master, supercargo or consignee, for work,
supplies or materials ; and such debts shall ha^e the preference of
all debts, except the wages of those employed in navigating such
boats and vessels. This provision in some respects is broader than
the maritime law, in relation to liens for work, materials and sup-
plies. This lien may arise upon contracts express or implied, and
in the home port ; and embraces those created by owner, master,
supercargo and consignee. For these purposes, the pilot may bind
the boat, Avhen he acts in the capacity of master or supercargo.
But the power personally to bind the owner must be sought in the

46 MOUNT VERNON.

Leddo et al. v. Husrlies.

principles of the common law, the mercantile or maritime law,
when that obligation is to be superadded to the statutory lien
upon the vessel. With the exception of the creation and attach-
ment of a lien upon the vessel, these contracts must depend upon
the general principles of the law, and not upon the statute, for
the extent of their personal obligation upon the principal when
made by an agent or servant.

The contract is made by the agent or servant in this case, and
the action is against his principals, and it involves the question as
to the extent of his authority, arising by implication from the
pressing necessities of the interest of his employers, to enable
him to perform their work. Admitting that a loan of money to
the master of a vessel is to charge the owner, the lender must
show under the statute the necessity for it, for "repairing, fitting,
furnishing or equipping," or for the payment of wages to "mar-
iners, boatmen and others," due for navigating the vessel ; and
the application of the funds to these purposes. Or, if the owner
is sought to be charged with such loan under the common law,
the lender must show such circumstances as would raise a pre-
sumption of implied authority from the owner to the master as
his servant. And, in doing this, the burden of proof is upon the
lender to show such necessity to exist, and to the extent of the
loan. In this the defendant has failed in his proofs.

According to the principles here laid down, the instruction
asked by the plaintiffs should have been given. The modification
of the other instruction should have been further qualified by
adding the principal's authority to the agency, so as to make the
act his own.

The question as to the reasonableness of the compensation prom-
ised by Wallace to defendant, should have been left to the jury,
under the instruction given on his behalt:.

Judgment reversed and cause remanded.

Juds:inent reversed.

NOVEMBER TERM, 1853. 4T

Sloo T. Pool.

James C. Sloo, Administrator of the estate of William Castles,
deceased, plaintiff in error, v. Orval Pool, defendant in
error.

ERROR TO GALLATIX.

A surety may enforce contribution from a co-surety without showing the
insolvency of the principal. (")

Where a creditor does not exhibit his claim within two years from the
granting of letters of administration, he cannot participate in that por-
tion of the estate which was inventoried or accounted for during that
period. Such creditor must be satisfied out of estate subsequently dis
covered.

If an administrator does not return an inventory of the real estate of the
intestate within two years, such creditor may share in the proceeds
thereof.

This cause was heard at October term, 1853, of the Gallatin
Circuit Court, before Marshall, Judge.

N. L. Freeman, for plaintiff in error.

Hugh B. Montgomery, for defendant in error.

Treat, C. J. In July, 1841, Robert Castles, as principal,
and William Castles and Orval Pool, as sureties, executed a
joint and several promissory note to the Bank of Illinois. In
August, 1852, Pool paid the note in full. William Castles was
dead ; and his administrator had been qualified more than two
years. On the 5th of October, 1852, Pool filed a claim in the
county court against the estate of William Castles, for contri-
bution on account of the payment of the note. The adminis-
trator did not file an inventory of the real estate of William
Castles until the 1st of November, 1852. The county court
disallowed the claim, and the case was removed into the circuit
court. That court rendered judgment against the administrator
for one half of the amount paid by Pool, to be discharged in
due course of administration, out of any assets discovered sub-
sequent to the 5th of October, 1852. It did not appear whether
Robert Castles was solvent or not.

It is insisted that a surety cannot enforce contribution from
a co-surety, without showing the insolvency of the principal.
This may be the doctrine of courts of equity, but it is not the
rule at law. In Cowell v. Edwards, 2 Bos. & Pull. 268, Lord
Eldon expressed the opinion that a surety might maintain an
action for contribution against a co-surety, without proving

(^0 Klein v. Mather, 2 Gil. R. 336.

48 MOUNT VERNON;

Sloo V. Pool.

the insolvency of the principal debtor ; and that opinion does
not appear to have been questioned in the English courts. It
has been followed in this country in the cases of Odlin v. Green-
leaf, 3 New Hamp. 270 ; Roberts v. Adams, 6 Porter, 361 ; and
Judah z^. Micure, 5 Blackf. 171. The Kentucky courts hold
that a surety cannot compel contribution, unless the principal
is insolvent. But the rule laid down by Lord Eldon is best
supported by authority, and more consistent with legal prin-
ciples. Sureties are individually liable to the creditor. Bat
one is as much bound to discharge the debt as another. If the
creditor endeavors to enforce payment from them, it is, as be-
tween themselves, the duty of each to pay an aliquot portion
of the debt. If that is not done, and one is compelled to pay
the whole, he is entitled to contribution from the others in the
same proportion. The law implies an agreement between
them, Avhen they become responsible to the creditor, that if one
shall be compelled to pay the debt, the others will contribute,
so as to make the burden equal. If one pays the whole debt
he has a cause of action against the others, to recover their just
proportions, as so much money paid to their use. Blis right to
contribution is complete as soon as he pays the debt ; and he
may at once call upon his co-sureties to bear the common burden
with him. At law, he cannot sue two or more sureties
jointly, but he must sue each separately. And he can only
recover from one an aliquot proportion of the debt, to be ascer-
tained by the number of sureties, without regard to their sol-
vency. But in equity, relief is granted between sureties on
the principle of equality applicable to common risk ; and if
one of them is insolvent, the loss is apportioned among the
others. 1 Story Eq. § 486 ; Chitty on Cont. 471 ; Theobald on
Principal and Surety, 196. In the present case, the sureties
wei?e individually liable for the debt. The bank might have
sued either of them separately, and compelled him to pay the
entire debt. But as between themselves, each was bound to
pay one halE of the note. Pool advanced a moiety for the use
of the estate of his co-surety ; and he was clearly entitled to a
judgment against the administrator for that amount, without any
reference to the ability of the principal.

As Pool did not exhibit his claim within two years from the
grant of letters of administration, he is precluded by the statute
of limitations from any participation in that portion of the
estate of William Castles which was inventoried or accounted
for by the administrator during that period. His judgment can
only be satisfied out of estate discovered or inventoried after
the expiration of the two years. Thorn t*. Watson, 5 Oilman,

NOVEMBER TERM, 1853. 49

The Alton, &c., Railroad Co. v. Northcott.

26 ; Judy v. Kelly, 11 Illinois, 211 ; The People 2; . White, ib.
341. The statute makes it the duty of an administrator, within
three months after his appointment, to return to the probate
court a full and perfect inventory of the real and personal property
of the intestate. R. S. ch. 109, § 81. The administrator of
William Castles did not return an inventory of the real estate
within two years from the grant of administration. The real
estate was therefore not inventoried or accounted for during that
period of time ; and Pool is consequently entitled to participate
equally with the other creditors in the proceeds thereof. He is
also entitled to share in the proceeds of any personal estate dis-
covered or inventoried after the expiration of the two years.
The court erred in confining Pool, in the satisfaction of his judg-
ment, to assets discovered or inventoried subsequent to the filing
of the claim. But this error cannot operate to the prejudice of
the administrator. Pool alone has reason to complain.
The judgment is afiirmed.

Judgment affirmed.

The Alton, Mount Carmel, and New Albany Railroad Com-
pany, plaintiff in error, v. James B. Northcott, defendant
in error.

ERROR TO EDWARDS.

A witness should not testify touching the construction of a contract ;

if a question arises as to its meaning, the question must be settled by

the court.
Where the parties to a contract stipulate that a particular person

shall estimate the work to be done uuder it, his estimate will bind the

parties, unless it is based on an erroneous view of the contract ; if so,

it will not conclude them.

This cause was tried before Marshall, Judge, and a jury, at
August term, 1852, of the Edwards Circuit Court. Verdict and
judgment for the plaintiff in the court below. The railroad com-
pany sued out this writ of error.

W. H. Underwood and E. Beecher, for plaintiff in error.
C. Constable, for defendant in error.

50 MOUNT VERNOIS'.

The Alton, «fcc., Railroad Co. v. Northcott.

Treat, C. J. This was an action of assumpsit, brought by
Northcott against The Alton, Mt. Carmel, and New Albany
Railroad Company. On the trial, the plaintiff read in evidence
a WTitten contract between the parties. It required the plaintiff
to perform certain work on the road of the defendant ; and it
provided that the work should be estimated every sixty days by
the superintendent of the road, and that the defendant should
promptly pay four-fifths of the value of the work estimated.
The plaintiff' then read in evidence an estimate of the superin-
dent, showing a balance due the plaintiff of $714.80, after
deducting one-fifth as retained percentage. The estimate was
of 1,300 cross ties. The contract required them to be "one
foot face, thickness eight inches heart wood." The plaintiff then
introduced the superintendent, who testified that he made
the estimate. On cross-examination, he stated that of the 1,300
ties included in the estimate, only about 500 would face
twelve inches on two sides, and eight inches on the other sides ;
that nearly all of the others were bixteen inches on one side, and
eight inches thick in the middle, of heart wood, but they would
not face twelve inches on two sides. The plaintiff then asked
the witness if the ties, according to the usage of engineers, were
suitable for the purpose for which they were intended, and a
compliance with the terms of the contract. The defendant
objected to the question, but the court overruled the objection,
and the witness answered in the affirmative. The jury returned a
verdict for the plaintiff for $714.80, and the court rendered judg-
ment thereon.

The court erred in permitting the witness to answer the
question objected to. It involved a construction of the con-
tract. That was a matter for the consideration of the court,
and not of the witness. (a) It was the province of the witness
to state facts, and that of the jury to determine whether the con-
tract had been complied with. It was the duty of the super-
intendent to estimate the work according to the terms of the
contract. Such an estimate would bind the parties, for they
had stipulated that the work should be measured by him.
But an estimate based on an erroneous view of the con-
tract, would not conclude them. McAvoy v. Long, 13 Illinois,
147. There is no difficulty in ascertaining the intentions of the
parties. The language of the contract is plain and explicit.
The ties are to be twelve inches in width, and eight inches in
depth ; in other words, they are to face twelve inches on two
sides, and be eight inches thick. The plaintiff has not performed
the contract, unless he has furnished ties of this description.
The witness testified that the greater portion of the ties did not

(a) Sigsworth^).McInty re, 18111. R. 128.

NOVEMBER TERM, 1853. 51

Mussulman v. The People.

answer the description ; and yet he expressed the opinion that the
phiintift" had fulfilled the contract. It is not competent for a wit-
ness to state that a contract has been performed. He must speak
of facts within his knowledge, and leave the jury to settle the
question of performance. If a question arises as to the mean-
ing of a contract, it is to be determined by the court. And the
jury, acting upon the construction thus given, are to decide from
the facts and circumstances before them whether the contract has
been complied with. This case forcibly illustrates the propriety
of the rule. The witness was allowed to give an opinion upon
the question whether the contract had been performed. He clearly
mistook it true meaning, and thus misled the jury. The corpora-
tion had a right to insist upon a full performance of the contract.
It was entitled to ties of the kind described in the contract. The
real inquiry was, did the ties in question answer the description ;
not whether they were equivalent in value or as suitable for the
purpose intended. See Taylor v. Beck, 13 Illinois, 376.
The judgment is reversed and the cause remanded.

Judgment reversed.

Jacob Mussulman et al., plaintiffs in error, v. The People,
defendants in error.

ERROR TO MASSAC.

One of several cognizors cannot raise the objection that a joint cognizor

is not liable.
The defendant in a proceeding by scire facias on a recognizance, cannot

assign for error, the failure of the court to dispose of the case as to a

co-cognizor.

This cause was heard by DENNEsra, Judge, at June term, 1853,
of the Massac Circuit Court.

T. G. C. Davis, for plaintiff in error.

J. Robinson, for the peogle.

Treat, C. J. Mussulman, Jack and others, acknowledged a
joint and Several recognizance, conditioned for the appearance of

52 MOUNT VERNON.

Mussulman v. The People.

Lane to answer a criminal charge. The obligation was forfeited,
and a scire facias issued against the cognizors. Mussulman and
Jack entered their appearance ; and the former pleaded in bar of
the proceeding that Jack was an attorney and counselor at law
when the recognizance was executed. The court sustained a
demurrer to the plea, and rendered a judgment against Mussul-
man for the amount of the recognizance, without disposing of the
case as to Jack. Mussulman sued out a writ of error.

The statute declares that "no counselor or attorney at law,
sheriff, under-sheriff, bailiff or other person concerned in the exe-
cution of process, shall be permitted to be special bail in any
action." It will not be necessary to inquire whether this pro-
vision has any relation to recognizances in criminal cases. Even
if it applies to this case, and vitiates the obligation as to Jack,
still it is very clear that Mussulman is bound. He cannot raise
the objection that Jack is not liable. If there is a defense at all,
it is personal to Jack, and available to him alone. (a)

Nor can Mussulman assign for error the failure of the court to
dispose of the case as to Jack. This precise question arose and
was decided in Passfield v. The People, 3 Gilm. 406. In that
case the parties to a joint and several recognizance were served
with process of scire facias, and a judgment by default was
rendered against one, leaving the case undisposed of as to the
others. On error brought by him against whom the judgment
was entered, the court remarked : "Judgment might have been
rendered against all of the cognizors, but of this the people only can
complain. The question was also in principle settled in the pre-
vious case of Sans v. The People, 3 Gilm. 327.

The judgment is affirmed.

Judgment affirmed.

(a) .Jack ». People, 19 111. R. 57.

NOVEMBER TERM, 1853. 53

PfeifFer i\ Grossman.

Andreas PFEirPER, plaintiff in error, r. George Grossman,
defendant in error.

ERROR TO ST. CLAIR.

If a party puts a fence on or ploughs the land of another, lie is liable as
a trespasser; and an action may be maintained for the trespass,
although the owner is not substantially injured.

Every unauthorized entry on the land of another is trespass, for which
an action ■\vill lie.

This cause was tried before Under^vgod, Judge, at tlie March
term, 1853, of the St. Clair Circuit Court.

G. Koerner, for plaintiff in error.

"P. B. FouIvE, for defendant in error.

Treat, C. J. This was an action of trespass quart dausuvi
Jregit^ brought in 1853, by Pfeiffer against Grossman. The
plea was, not guilty. It appeared in evidence, that the plaintiff
had title to a certain tract of land ; that according to a survey
made in 1851, a fence claimed by the defendant was on this tract ;
the fence inclosed about half an acre of the tract, part of which
was in timber, and the rest in cultivation ; the fence was built by
McGuire, who was in possession previous to the defendant ; prior
to the survey there was some difficulty between the plaintiff and
defendant as to the boundary line, the latter claiming to the
fence ; the defendant was dissatisfied with the survey, and con-
tinued in possession of the ground up to the fence, although noti-
fied by the plaintiff to remove the fence ; after the suit was
brought, the defendant caused another survey to be made, which
agreed with that made in 1851. It was stated by the plaintiff's
counsel, that the suit was brought for the purpose of establishing
the boundary line between the parties. The court refused to give
these instructions : "That the putting a fence or letting it stay
on the land of another is a trespass in the eye of the law, for
Avhich the aggrieved person is entitled to at least nominal dama-
ges ; that the ploughing up of another man's land and cultivating
it, although the land may thereby be improved, is still a trespass
in law, for which the person aggrieved is entitled to at least nom-
inal damages." The jury found the issue for the defendant, and
the court rendered judgment on the verdict.
ILL. r. vol. XV. 5

54 MOUNT VERNON.

County of St. Clair v. Irwin.

The instructions not only asserted correct legal principles, but
they were strictly applicable to the case. If a party puts a fence-
on another's land, or plows up the soil, he is liable as a trespasser.
Such acts are a violation of the owner's right of possession, ta
redress which the law gives him an action. And the action is
maintainable, although the owner is not substantially injured. He
is entitled to nominal damages for the intrusion upon his posses-
sion. The defendant cannot defeat the action, by showing that'
the plaintiff is not materially prejudiced, or even that he is actu-
ally benefitted. A right is invaded, and a wrong committed, and
that is a sufficient basis for an action. Every unauthorized entry
on the land of another is a trespass, for which an action will lie.
The law implies damage to the owner, and in the absence of proof
as to the extent of the injury, he is entitled to recover nominal
damages. Especially is this the case, where the suit is brought
for the purpose of settling a question of right. Dixon v. Clow,
24 Wend. 188 ; Pastorius v. Fisher, 1 Rawle, 27 ; Bagby v.
Harris, 9 Ala. 173 ; Plumleigh v. Dawson, 1 Gil. 544 ; Bolivar
Manuf. Co. v. Neponset Manuf. Co. 16 Pick. 241 ; Whipple v..
The Cumberland Manuf. Co. 2 Story's R. 561.

The judgment is reversed, and the cause remanded.

Judgment reversecL

The County of St. Clair, plaintiff in error, v. John Irwin,
defendant in error.

ERROR TO ST. CLAIR.

The term county court, as used in the 21st section of the act of February
12, 1849, was designed only to apply to the sittings of the county court
for the transaction of county business.

It is not the duty of sheriffs to attend the sessions of the county courts
held for the transaction of probate business unless required so to do,
and they will not be compensated for attendance unless the attendance
is required by the judge.

There is the same reason for the attendance of sheriffs upon the
county court, held by the three judges, as under the old sj'Stem.

This cause was submitted to Underwood, Judge, at the
August term, 1851, of the St. Clair Circuit Court, upon an agreed
state of facts.

NOVEMBER TERM, 1853. 55

County of St. Clair v. Irwin.

The court rendered judgment for the sheriff. Sec facts stated
in the opinion of the court.

P. B. FouKE, for phiintiff in error.
N. NiLES, for defendant in error.

Treat, C. J. This Avas an action brought by Irwin against
the county of St. Ckiir. It was heard by the court on this state
of facts. Irwin, as sheriff, attended the county court, while in
session as a probate court, for twenty-five days ; but such atten-
dance was not in pursuance of any direction or rec{uest of the
county judge. The court rendered judgment in favor of Irwin
for $25.

Section 17, ch, -11, R. S., gives the sheriff " for attending the
circuit and county commissioners' courts, to be allowed and paid
out of the county treasury, one dollar." Sec. 7, ch. 99, R. S.,
makes it "the duty of the sheriff of each county, to attend all
circuit courts and courts of commissioners in his county, at the
terms and sessions of such courts." Sec. 140, ch. 109, R. S.,
declares it to be the duty of " the sheriff of each county, when
required by the court of probate, to attend all regular and special
sittings of said court." These provisions require the sheriff" to
attend the sessions of the circuit and county commissioners' courts,
and give him one dollar per day for such attendance ; and they
make it his duty to attend the sittings of the probate court, when
required so to do by that court, and give him the same iier diem
compensation. The question is, Are his duties changed by subse-
quent legislation? The act of the 12th of February, 1849,
establishes a county court, to be held by county judge, and confers
upon it all the powers and jurisdiction previously vested in the
probate court. It also provides that the county judge and two
associates shall hold a county court for the transaction of county
business, and vests in this court all the powers and jurisdiction
previously exercised by the county commissioners' court. It fur-
ther provides that " the sheriff in each county shall, by himself
or deputy, attend the sittings of the county court." This act
abolishes the county commissioners' and probate courts, and trans-
fers their powers to the county court. But these powers are still
kept separate, and are exercised by different officers. The county
business is transacted by three judges, who hold quarterly terms,
and generally remain in session but a few days ; while the pro-
bate business is conducted by a single judge, who holds monthl_y
terms, and, in many counties, continues in session for the greater

5Q MOUNT VERNON.

Hai'low V. Boswell.

portion of tlie year. There is the same reason for the sheriff's
attendance upon the court held by the three judges, as formerly;
and there is no more reason for his attendance upon the court
held by the county judge, than under the old system. We think
the term county court, as used in the 21st section of the act of
February 12, 1849, was designed only to apply to the sittings of
the county court for the transaction of the county business. In
this view of the case, the duties of the sheriff remain unchanged.
It is not his duty to attend the sessions of the county court held
for the transaction of probate business, unless required by the
county judge to do so. The attendance in question was not ren-
dered on the requisition of the county judge, and therefore was
not the proper subject-matter of compensation.
The judgment is reversed.

Judgment reversed.

NoAii B. Harlow, plaintiff in error, v. Thomas Boswell,
defendant in error.

ERROR TO UXION.

A plea of lion as-'^umpnt to an action of debt is bad. Where a declaration
avers that a note is past due, if it was not in fact due, the defendant
should set it out on oyer and demur to the declaration ; or he may
object to the introduction of the note in evidence at the trial ; a plea
that the note is not due and payable is bad.

A plea of fixilure of consideration cannot.be interposed to a note in the
hands of a /jonafide assignee before maturity.

A plea which seeks to vary the terms of a v/ritten instrument, by the
parol declarations of the parties, made before or at the time of its exe-
cution, is bad. Where the parties commit their contract to writing,
this forms the only evidence of its terms.

The copy of a note attached to a count, forms no part of the declaration.

Tins cause was heard before Denning, Judge, at April term,
1850, of the Circuit Court of Union county. A judgment was
rendered for the plaintiff below on the following note : " Twelve
months after date, for value received, I promise to pay G. W.
Allen, or W. 11. Reed, his agent, fifty dollars, or as soon as I
can sell the above amount of Allen's vegetable tonic. Witness
myhand and seal, Oct. 7,1847. ( Signed )N. B.Harlow, [seal]."
Indorsed, " For value received I assign the within note to Thomas
Boswell." April 11, 1848.

NOVEMBER TERM, 1853. 57

Harlow v. Boswell.

C. G. Simons, for plaintiff in error.
J. Dougherty, for defendant in error.

Treat, C. J. The only questions in this case relate to the
sufficiency of the first, third, fourth, and fifth pleas. The decla-
ration was in debt on a promissory note, made by the defendant
to Allen, payable twelve months after date, and assigned by the
payee to the plaintiff before it became due.

The first plea was non assumpsit. It was not adapted to the
form of action, and was properly held bad on demurrer.

The third plea averred in general terms that the note was
not due and payable. The plea was clearly bad. The note, as
described in the declaration, was overdue when the action was
commenced. If it was not in fact then due, the defendant
should have set out the note on oyer, and demurred to the dec-
laration. In that Avay, the matter might have been distinctly
presented to the court. He might also have raised the same
question on the introduction of the note in evidence. If not
due, it would not have corresponded with the one described in the
declaration, and would have been excluded on the ground of
variance.

The fourth plea was one of failure of consideration. Such a
defense cannot be interposed to a note in the hands of a bona
fide assignee before maturity. The plea contained no averment,
either that the note was assigned to the plaintiff after it fell due,
or that he had notice of the defense when he received the assign-
ment. For the lack of one of these allegations, the plea was
obnoxious to a demurrer.

The fifth plea alleged in substance, that it was agreed be-
tween the payee and the defendant at the time of the execution
of the note, that it should not become due and payable until
the latter should sell $50 worth of Allen's vegetable tonic, and
that the right to vend the tonic in Monroe county formed the
only consideration for the note ; that the defendant had not
sold any of the tonic, nor could he have sold any by the use of
due diligence ; and that the plaintiff had notice of the agree-
ment previous to the assignment of the note. There is a fatal
objection to this plea. It attempts to vary the terms of a writ-
ten instrument by the parol declarations of the parties, made at
the time of its execution. This is Avholly inadmissible. Where
parties commit their contract to writing, the writing forms the
only evidence of its terms. The prior and contemporaneous ver-
bal agreements of the parties, are merged in the written con-
tract. Lane v. Sharpe, 3 Scam. 560 ; Abrams v. Pomroy,

58 MOUNT VERNON.

Herod a al. v. Bartlej-.

13 111. 133. The note on its face was payable absolutely. The
plea seeks to show by parol that it was payable on a contin-
gency.(a)

It is insisted that the demuiTer to the pleas should have been
carried back and sustained to the declaration. The first count
is unquestionably good. It is the usual form upon a promissory
note, made by the defendant, and assigned by the payee to the
plaintiff. There is nothing to indicate that the note was not cer-
tainly payable. The copy of the note attached to the count
formed no part of the declaration, and could not be noticed on
demurrer. If the instrument was not a negotiable note, and
therefore not assignable, the defendant should have craved oyer,
and set it out on demurrer to the declaration.

The judgment is affirmed.

Judgment aQirmed.

{(C) Mayer e;; al. v. Hutcliinson, 2 Gil. Vx. 269; McCarthys'. Howell, 24 111.
R. 344.

Thomas G. S. Herod et aL, appellants, v. Milton Bartley,
Administrator, &c. , appellee.

APPEAL FROM GALLATIN.

In the sale of personal property on execution, the property itself must be
present or the gale will be void.

This cause was heard before S. S. Marshall, Judge, at the
July term, 1853, of the Gallatin Circuit Court.

The opinion states the case.

Freeman and Wingate, for appellants.

J. A. McClernand, for appellee.

Treat, C. J. This was an action of replevin brought by
Herod and Colvard against Seaton, to recover the possession
of a horse. The pleas put in issue the right of the plaintifts to
the property. The cause was heard by the court. The plain-
tiffs introduced the following evidence, and then closed their
case. 1. A transcript from the docket of a justice of the peace,
showing a judgment in favor of Hudson against Layton, and

NOVEMBER TERM, 1853. 59

Wilderman et al. v. Sanduskj',

an assignment thereof to the phiintiffs. 2. An execution issued
on the judgment, which was returned satisfied by the sale of a
horse to the phiintiffs. 3. The constable testified, that he levied
the execution on the horse in cjuestion, and allowed Layton to
retain him till the day of sale ; the plaintiffs purchased the horse
at the sale, but the horse was not then present, nor was he in the
possession of the witness. The court, on the motion of the
defendant, excluded the judgment, on the ground that the justice
had no jurisdiction of the parties ; and then found the issues for
the defendant, and rendered judgment in his favor.

We do not deem it necessary to inquire whether the court prop-
erly excluded the judgment. Even if it was admissible in evi-
dence, the plaintiffs were not entitled to recover. They failed to
substantiate their claim of title. The sale of the horse by the
constable was illegal and void. In the sale of personal property
on execution, the property itself must be present. (a) Bidders
should have an opportunity of inspecting the goods, and forming
an estimate of their value. This is the only way to secure fair-
ness and competition at public sales. It is necessary to protect
the rights of both debtor and creditor. It should also be in the
poAver of the ofl[icer to deliver the property forthwith to the pur-
chaser. Linnendoll v. Doe, 14 Johns. 222 ; Sheldon v. Soper,
zb. 352 ; Cusson v. Stout, 17 zb. 116 ; Ainsworth v. Greenlee,
3 Murphy, 470 ; Blanton v. Morrow, 7 Ired. Eq. 47.

The judgment is aflSrmed.

Judgment affi.r7ned.

(n) Minor r. Herriford, 25 III.R. 34G ; Havelj- v. Lowrv, 30 111. R. 450 ;
Davidson «. Waldron, 31 111. R. 130; Chitteudeu v. Rogers, 43 111. R 105.

Gaurison Wilderman eif al., appellants, v. Andreav Sandusky,

appellee.

APPEAL FROM FRANKLIN.

Where four persons are sued in trespass, a finding of a verdict of guilty
as to three, without naming the fourth, will be a sufdcieut verdict.

This was an action of trespass against the appellants for
trespass, in wounding cattle. The action was commenced before
a justice of the peace, aad taken by appeal to the Circuit Court

60 MOUNT VERNON.

Wilderman et al, v. Sandusky.

of Franklin county ; where the cause was heard before Denning^
Judge, and a jury, at September term, 1853. The Wildermans
prayed this appeal.

The facts of the case are stated in the opinion of the court.

H. B. Montgomery and E. V. Pierce, for appellants.

John A. Logan, for appellee.

Treat, C. J. Sandusky brought an action of trespass against
four persons of the name of Wilderman. The cause was sub-
mitted to a jury as to all of the defendants. The verdict was-
as follows : "We, the jury, find the three defendants, Nancy
Wilderman, Simon Wilderman, and Garrison Wilderman,
guilty, and assess the plaintiff's damages at thirty-five dollars."
The court overruled a motion for a new trial, and rendered
judgment against the three defendants. They prosecuted an
appeal.

Upon a full examination of the evidence, we are satisfied,
that the court committed no error in refusing to grant a
new trial.

It is insisted that the verdict was defective, and that the
court erred in rendering any judgment upon it. In our opin-
ion, the verdict was substantially good. It may properly be
regarded as a finding on all of the issues ; and the judgment may
be considered as a final disposition of the whole case. The case,
as to all of the defendants, was submitted to the jury ; and
they found afiirmativel}^ that three of them Avere guilty. In
legal contemplation, this amounted to a negative finding of not
guilty as to the other defendant. The case of Stoltz v. The
People, 4 Scam. 168, is in principle directly in point. In
that case, the indictment contained two counts, each charging a
different offense. The verdict was simply guilty, as to the
first count. On error brought by the defendant, this court
affirmed the judgment entered on the verdict, on the ground that
the verdict amounted to a finding of not guilty on the second
count, and that the defendant could never again be put on his
trial for the offense charged therein. The case of Swinney v.
The State, 8 S. & M. 576, holds the same doctrine. This
view of the case cannot operate to the prejudice of Jacob Wilder-
man. He may rely on the verdict and judgment as a bar to
any further prosecution. Nor have the appellants any cause
to complain. In actions of this character, the plaintiff may sue
any or all of the parties concerned in the act. The jury-
may convict one, and acquit another. If one is compelled to pay

NOVEMBER TERM, 1853. Gl

Duckling v. Hill.

the damages awarded, lie cannot enforce contribution from his
co-defendant.

The judgment is affirmed.

Judgment ajjirnud.

Richard DuDDiNG, plaintiff in error, v. Harriet Hill, defend-
ant in error.

ERROR TO JACKSON.

The action for use and occupation is founded upon a contract, express
or implied, and the relation of landlord and tenant must exist between
the parties.

This cause was heard before Dexning, Judge, and a jury, at
the May term, 1852, of the Jackson Circuit Court, and resulted
in a verdict and judgment for the defendant in error. The facts
will be found in the opinion of the court.

John Dougherty and C. G. Simons, for plaintiff in error.

Richard S. Nelson, for defendant in error.

Treat, C. J. This was an action of assumpsit for use and
occupation, brought by Harriet Hill against Richard Dudding.
The material facts in evidence were these. In September,
1814, T. B. Hill, the husband of the plaintiff, became seized in
fee of lots five and six in block twelve, in the town of Murphys-
borough. In May, 1846, lot six was sold on execution against
Hill, and bid in by Heiple, who assigned the certificate of pur-
chase to Dudding. In August, 1846, lot five was sold under
an execution against Hill, and bid off by Buesley, who assigned
the certificate of purchase to Dudding. Dudding obtained a
sheriff's deed for lot five in November, 1847, and for lot six in
January, 1851. Hill died in May, 1849, in possession of the
lots. There was a dwelling-house on lot five, and an inclosure
on lot six. Mrs. Hill left the premises shortly after the death
of her husband, but intended to return and occupy the same.
In the fall of 1849, Dudding went into possession of the prem-
ises, and remained there until some time in the following year.
It did not appear that there was any arrangement between

62 MOUNT A^RNON.

Clark et al. v. Burnsicle.

Mrs. Hill and Dudding respecting the premises, or that he acquired
the possession -with her assent or permission. The jury returned
a verdict in favor of Mrs. Hill for ^36, which the court refused
to set aside.

The action for use and occupation is founded upon contract.
It will only lie where there is a contract, express or implied.
The relation of landlord and tenant must exist between the par-
ties. («) This is the uniform language of the authorities.
Smith V. Stewart, 6 Johns. 46 ; Pott v. Lesher, 1 Yeates, 576 ;
The City of Boston v. Binney, 11 Pick. 1 ; Hof ar v. Dement, 5
Gill, 132 ; Rogers v. Wiggs, 12 B. Monr. 504 ; Brewer v.
Craig, 3 Harrison, 214 ; Ballentine v. McDowell, 2 Scam. 28.
In this case, there was no pretense for holding that the relation
of landlord and tenant existed betAveen parties. Dudding went
into possession of the premises under a claim of title, and not as
the tenant of Mrs Hill. His possession was not subservient to
her title, but purely of an adverse character. He consequently
was not liable in an action for use and occupation. If Mrs. Hill
was entitled to the possession of the lots, her remedy was in an
action of trespass or ejectment. The verdict was clearly against
the law and evidence ; and the court erred in not o-rantincr anew
trial.

The judgment is reversed, and the cause remanded.

Judgmenl reversed.

(a) Mc:^rairi'.Sc]iwartz, 16111. R. 25 and notes; Oakcsr. Oakes, 16 111. R.
106 ; Higgins r. Halligan, 46 111. R. 173.

RosANNx\ Clark ei a/., plaintiffs in error v. Joiix Burnside,
Administrator of the estate of James Burnside, deceased,
defendant in error.

ERROR TO CLIXTON.

It is the duty of a guardian to institute proceedings for the assignment
of dower. It is equally his duty to lease such portion of tlie estate as
is set apart to the wards, and his estate is liable for "whatever might
have been received by a faithful discharge of those duties.

Rails in stacks are personal property, and the title vests in the adminis-
trator; he alone can maintain an action to recover them.

Rails taken from a fence are part and parcel of the realtj- and pass to the
heirs, and if a guardian severs rails in a fence on the land, and converts
them to his own use, his estate is answerable directl}^ to the heirs for
their value.

An administrator is a competent witness to show when money was
received from him by a guardian, if it appears from other evidence;
that the administrator has settled up the estate and distributed the
proceeds among the heirs.

NOVEMBER TERM, 1853. 03

Clark et al. v. Burnside.

This cause was heard before Underwood, Judge, at the May
term, 1852, of the Clinton Ch-cuit Court, on an appeal from the
county court of that county.

The facts necessary to a full understanding of the opinion, will
be found stated in it.

R. S. Nelson, for plaintiffs in error.

S, Breese, for defendant in error.

Treat, C. J, Rosanna, Margaret, and Sarah Ann Clark,
heirs at law of John Clark, filed a claim in the county court
against the estate of James Burnside. The case was removed
into the circuit court by appeal. Several cjuestions arose on
the trial, which will be noticed in their order.

First. It appeared in evidence, that Clark died seized of a
farm, and that Wilcock administered on his estate ; that Burn-
side married his widow, and became the guardian of the plain-
tiifs ; that the widow quit the farm on her marriage, but she
and Burnside leased the same, and received the rent, amounting
to ^80 or $100 per annum ; that her dower was never assigned.
The court decided that Burnside received the rent in the right
of his wife, and not as the guardian of the heirs, and excluded
the evidence of the leasing of the farm. The statute provides
that the "widow may, in all cases, retain the full possession of
the dwelling-house in which her husband most usually dwelt
next before his death, together with the outhouses and planta-
tion thereto belonging, free from molestation and rent until her
dower be assigned." It was clearly the right of the widow to
retain the exclusive possession of the farm, until the assignment
of her dower. And perhaps she had the right to lease the same,
and receive the rent to her own use, so long as her dower re-
mained unassigned. The possession of the tenant in such a
case might be regarded as her possession, Avithin the true intent
of the satute.(a) But this is not a contest between the heirs and
the widow. The case is between the heirs and the administra-
tor of the guardian. It was clearly the duty of the guardian to
institute proceedings for the assignment of dower, so that his
wards might obtain their share of the rents and profits of the
estate. It was equally his duty, on the dower being assigned,
to lease the porti®n of the farm set apart to the heirs. And his
estate is liable for whatever might have been received by a
faithful discharge of those duties. The court erred in excluding
the evidence.

(rt) Atkin r. Mcrrell, 39 111. R. G3.

64 MOUNT VERNON.

Clark et al. v. Burnside.

Second. It appeared that the estate of Clark had been set-
tled, and the surplus distributed among the heirs. The plaintiffs
offered to prove that Burnside took from the farm some $400
worth of rails, part of which were in stacks and the rest in a
fence, and put them in a fence on his own land. These rails
were not inventoried or accounted for by the administrator of
Clark. The court rejected the evidence on the ground, that the
rails were the property of the administrator. The rails in the
stacks were personal property, and the title vested in the admin-
istrator. He alone could maintain an action to recover them.
The fact that there has been a settlement of the estate, does not
change the cause of action. It must still be enforced in the
name of the personal representative of Clark. His estate, as
respects this property, remains unadministercd. If the authority
of Wilcock is at an end, another administrator may be appointed,
at whose suit the estate of Burnside may be held liable for the
value of the rails. To this extent, the ruling of the circuit
judge was unexceptionable. But he erred in excluding the proof
in relation to the rails taken from the fence. The fence was
part and parcel of the realty, and as such passed to the heirs on
the death of their ancestor. It was in no sense the property of
the administrator. The guardian having severed the rails from
the land, and converted them to his own use, his estate is answer-
able directly to the heirs for their value.

Third. Burnside was appointed guardian of the plaintiffs in
1843, and it appeared from the records of the probate court that
he received their distributive shares in 1845. In order to charge
his estate with interest from 1843, the plaintiffs proposed to
prove by Wilcock that he paid the shares to Burnside in that
year. The court held that he was an incompetent witness, and
excluded the evidence. The administrator was a competent
witness to show when the money was received by the guardian.
It appeared from other evidence that he had settled up the
estate, and distributed the proceeds among the heirs. He was
thereby discharged from responsibility to them, and had no inter-
est in the question as to when the payment was made. He would
not be competent to prove the payment, for he would be inter-
ested in dicharging himself, and charging the estate of the guar-
dian. But the payment being established, it was a matter of
indifference to him when it was made.

The judgment must be reversed, and the cause remanded.

Judgme7it 7'eversed.

NOVEMBER TERM, 1853. 65

Casey v. Baldridge et nl.

Mary K. Casey, plaintiflF in error, v. John P. Baldridge
et al., defendants in error.

ERROR TO JEFFERSON.

A teacher under the school law of 1849, is not entitled to any portion of
the school fund, unless he obtains the requisite certificate of qualifica-
tion, and presents it to tlie school directors, before the commencement
of the school.

This cause was heard before S. S. Marshall, Judge, at tlie
May term of the Jeflerson Circuit Court. The facts of the case
are stated in the opinion of the court.

R. S. Nelson, for plaintiff in error.

R. F. WiNGATE, for defendants in error.

Treat, C. J. This was an action on the case, brought bj
€asey against the directors of a school district. The declara-
tion alleged that the plaintiff entered into a written contract
with the inhabitants of the district, to teach a common school
for one quarter, and receive in payment the school funds belong-
ing to the district ; that " the plaintiff being then and there legally
C{ualified to teach said school, and no objection being made thereto,
in writing or otherwise, by the directors of said district, or by the
subscribers to said contract as aforesaid, of which they, the said
defendants, being then and there the school directors of said dis-
trict, had notice ;" that the plaintiff taught the school according
to the terms of the contract, and the provisions of the statute in
such case made and provided ; that at the expiration of the quar-
ter, she made out a schedule for the purpose of receiving the
school funds belonging to the district, and presented the same to
the defendants to be examined and certified by them ; that there
was then on hand a sum of money, belonging to the district, suffi-
cient to discharge the amount due her for teaching the school :
and that the defendants Avholly refused to examine and certify
the schedule. The court sustained a demurrer to the declara-
tion.

The 13th and 46th sections of the " act to establish and
maintain common schools," passed on the 12th of February,
1849, define the qualifications of teachers, and prescribe the
manner in which these qualifications shall be ascertained ; and
the 75th section provides, that " no teacher shall be entitled to

QQ MOUNT VERNON.

Thomas t. Sloo et al.

any portion of tlie common school or township fund who shall not,
before his employment, exhibit to the school directors of the dis-
trict in which he proposes to teach a school, a certificate of qual-
ification obtained under the provisions of section thirteen or section
forty-six hereof." To entitle himself to any portion of the school
funds, a teacher must obtain the requisite certificate of qualifi-
cation. And the certificate must be presented to the school direct-
ors, before the commencement of the school. This is the express
requirement of the statute. The directors are not bound to ex-
amine and certify the schedule of a teacher who fails to comply
with this requisition. Such teacher must look exclusively to the
subscribers for compensation. In this case the declaration is
clearly defective. It fails to show that the directors are guilty of
any breach of duty. It contains no averment that the plaintiff"
procured a certificate of qualification and exhibited it to the direct-
ors prior to the commencement of the school. This requirement
of the statute is a condition precedent, and its performance ought
to be distinctly alleged in the declaration. The general allega-
tion, that the plaintiff" was legally qualified to teach the school, is
not sufficient. (a)

The judgment is affirmed.

Judgment affirmed .

{:() Smith*. Curry, 16 111. R. 148; Botkin r. Osborn, 39 111. R. 101.

William Thomas, Trustee of the Bank of Illinois, appellant, v.
James C. Sloo et al., appellees.

APPEAL FROM GALLATIN.

One of several, nor all the assignees in conjunction, appointed to wind
up the attairs of the Bank of Illinois, is or are anthorized to make a
compromise with any debtor of the bank, by which the securitj' of the
bank or the trust fund will be diminished, unless some advantage will
accrue by such compromise to the creditors of the bank.

Tins appeal brings before the court the record of two causes,
which were consolidated, and in the circuit court a decree was
entered disposing of both. On the 10th of March, 1847, the
defendant Sloo, executed a mortgage to Albert G. Caldwell
and Ebenezer Z. Ryan, assignees of the Bank of Illinois, con-
veying a number of town lots and other lots of land, to secure

NO\^MBER TERM, 1853. 67

Thomas v. Sloo et al.

the payment of two notes of the same date. In this mort-
gage the wife of Sloo joined and relinquished her right of
dower.

On the 6th of April, 1848, Sloo executed a mortgage to C.
Pool upon several tracts of land and town lots, upon which
judgment was obtained in June, 1850, and satisfaction thereof
obtained by a sale of part of the property, leaving the residue
undisposed of and released from the operation of the mortgage
and judgment.

On the 13th April, 1848, Sloo executed a mortgage to Cath-
arine Forman upon several tracts of land to secure the payment
of a debt previously due.

On the 26th August, 1848, Sloo executed a mortgage to
Albert G. Caldwell, upon two lots of land previously mortgaged
to said Catherine Forman, to secure the payment of a debt due
Caldwell in his own right.

On the 3d of May, 1849, Sloo executed a mortgage to James
Hoggins, upon certain personal property, to secure the payment
of a debt previously due.

On the same 3d of May, Sloo executed a second mortgage
to said Caldwell and Ryan, as assignees, &c., further to secure
the payment of the two notes of 10th March, 1847, and to
secure several other sums Avhich he had agreed to pay for other
debtors to the bank. This mortgage covers the land previously
mortgaged to Forman and Caldwell, except one tract mort-
gaged to Forman ; together with a number of other tracts of
land and town lots.

On the same day Sloo executed a mortgage to James Hog-
gins, upon the lands previously mortgaged to Forman and
Caldwell, except one lot mortgaged to Forman. He also
executed a mortgage to W. & C. Fellows & Co., upon all the
lands and lots included in the several mortgages to Forman,
Caldwell, Hoggins, and the assignees of the bank, except also
one tract mortgaged to Forman. These three last-named
mortgages Avere ^ all acknowledged and filed for record at the
same time.

On the 19th of November, a writing was executed by
said CaldAvell for himself and Ryan, as assignees of the
bank, reciting that Sloo was indebted to the said as-
signees upon the two notes of the 10th of March, 1847,
the execution of the mortgage, to secure the paym.ent of said
notes, his liability to the assignees upon tAvo other claims,
and his agreement to settle the liability of another debtor to
the bank, and that "Whereas the said Sloo proposes in com-
pi'omise and payment and discharge of said liabilities, to sell
and convey his interest in the lands conveyed by said mortgage,

68 MOUNT VERNON.

Thomas v. Sloo et al.

and wliereas, Judith Sloo, his wife, is willing to join in a con-
veyance.— Now be it known that the said A. G. Caldwell and
E. Z. Ryan, do, by these presents, agree to receive the said
lands in compromise and settlement at the rate and appraise-
ment which may be fixed by John Hall and John Crawford ;
and should they disagree, their decision to be determined by an
umpire, to be selected by them ; it being understood that the
said J. C. Sloo, and Judith, his wife, will execute a deed of
release, so as to vest in the assignees of the bank, being A. G.
Caldwell, E. Z, Ryan, George A. Dunlap, and David A. Smith,
the fee-simple title for all the lands mentioned in said mortgage.
And should the said lands, at the appraisement fixed as afore-
said, exceed the amount of indebtedness above mentioned, then
such portion of said lands as the appraisers may designate shall
be reconveyed to the said Judith Sloo." (Signed) A. G. Cald-
■\VELL, [seal], for himself and E. Z. Ryan, assignees, &c. Upon
which agreement, on the first of October, 1851, Ryan indorsed,
" I consent to the foregoing arrangement made and entered into
by A. G. Caldwell. E. Z. Ryan, assignee, &c."

On the 6th of January, 1850, the said James C. Sloo executed
a mortgage to Michael K. Lawlor, upon several of the lots of
land conveyed by the second mortgage to the assignees of the
bank, to indemnify said Lawlor against loss or damage in con-
sequence of his being security for said Sloo on an administration
bond.

At the December term, 1850, of the Circuit Court of the
United States for the District of Illinois, upon bill in chancery
filed by the Bank of the State of Missouri, on the part of that
bank and all other creditors of the Bank of Illinois, against the
assignees of said last-named bank, a decree was entered, ap-
pointing trustees "to take charge of, and to execute the trusts
created and existing under and by virtue of the acts of the legis-
lature, in relation to the liquidation and finally closing the
affairs of the Bank of Illinois, in the place and stead of the
assignees." Of the trustees appointed by said court, A. G.
Caldwell alone acted, and he having departed this life, at the
July term, 1851, of said United States Court, William Thomas
was appointed sole trust-ee of said bank.

On the 29th of October, 1851, the surviving assignees of the
bank, by their deed and power of attorney, conveyed to said
Thomas, as trustee, &c., all of the estate, rights, credits, and
effects of the said bank, and vested him with power to use their
names when necessary in the collection of debts.

On the 31st of October, 1851, Hall and Crawford appraised
the lands, which, by the before-recited agreement, were to be
conveyed to the assignees, at $15,704.15. They estimated

NOVEMBER TERM, 1853. 69

Thomas v. Sloo et al.

the liabilities of Sloo to the bank at $10,604.15. and designated
lands and lots to be re-convejed to the said Judith Sloo, valued
at $5,100.

On the 27th of December, 1851, Sloo and wife notified
Thomas, the trustee, of the foregoing appraisement, proposed to
execute a release so as to vest the fee-simple title to the lands in
him, and requested him to re-convey to Judith Sloo the lands
designated by the said appraisers, which the said Thomas refused
to do.

In June, 1819, LaAvlor obtained a judgment on his mortgage ;
in June, 1850, W. & C. Fellows & Co. recovered a judgment on
their mortgage; in September, 1851, James Hoggins obtained a
decree upon his mortgage ; in July, 1852, Catharine Forman
obtained a decree upon her mortgage. Neither the assignees or
trustees of the bank had any notice of or were made parties to
the proceedings by Fellows & Co., Hoggins, or Forman.

On the 5th of December, 1851, Thomas filed a bill in chan-
cery against Sloo and wife, and numerous judgment creditors,
praying a foreclosure of the mortgages to the assignees, and a
sale of the property, to pay the notes secured by the first mort-
gage,— omitting to make the other mortgagees hereinbefore
named, parties.

On the 21st of May, 1852, the said James C. Sloo and wife
filed their bill against said Thomas as trustee, to compel him to
execute the agreement of compromise made, as alleged, with
Caldwell and Ryan : to this bill Thomas answered, admitting that
he had refused to execute the agreement of compromise, and in-
sisting that he was not bound to do so, because said agreement
was made by Caldwell alone without the knowledge or co-opera-
tion of any of the other assignees, and that Caldwell had no
right to make such agreement ; because the agreement was made
without any consideration, and because the whole of the property
referred to in said agreement would not probably sell for one half
of the amount due the bank.

At the December term, 1852, of the Gallatin Circuit Court,
Thomas filed an amended bill, making the mortgagees herein-
before named and John E. Hall parties to the suit. The two
causes being prepared for hearing upon bills, answers, replica-
tions, and exhibits, at the October term, 1853, of the Gallatin
Circuit Court, S. S. Marshall, Judge, presiding, the cases were
consolidated and a j?;ro Jorma decree was entered, from which
an appeal was allowed, and is prosecuted to this court by Thomas,
the trustee.

\Vm. Thomas, for appellant.

ILL. R. VOL. XV. 6

70 INIOUNT VERNON.

Thomas v. Sloo et al.

J. A. McClernand and N. L. Freeman, for appellees.

Caton, J. The important question in these cases is, whether
the contract of compromise made between Caldwell and Sloo
and wife, is valid and binding, and such a one as a court of
chancery Avill enforce. We think it is not, for several reasons.
The law authorized Caldwell and Ryan to compromise the
debts due the banks at Shawneetown and Lawrenceville, but it
did not authorize either one of them to do it alone. It was the
design of the law, that those who were interested in the collec-
tion of the debts of the bank, should have the benefit of the
united judgments of those two assignees, in any compromise of
a debt which should be made. Without this no compromise
could be valid and binding. It was not enough that one of the
assignees should authorize the other to compromise debts and
to sign his name to the composition agreement. If such an
arrangement were tolerated, the cestuis que h'usi would have the
benefit of the judgment and discretion of but one, while they
are only bound by compromises made by both. The mere
name of the other trustee, signed to the agreement by the one
who makes it, cannot help the case. It was not the mere name
of Ryan to which the parties interested were entitled, but his
judgment and financial skill. This was a power which he
could not delegate, either to his co-assignee or to any other
person.

W"e have carefully examined the evidence in this case, and are
entirely satisfied that Ryan never took part in this agreement
of compromise, or exercised his judgment upon it until the first
of October, 1851, when he indorsed his approval upon it. The
whole negotiation had been conducted by Caldwell under the
authority given him by Ryan for that purpose ; that he alone
made and executed the agreement on behalf of himself and
Ryan. Indeed, such is the purport of the agreement upon its
face. In that way and in that alone was the agreement made and
executed, with the consent and approbation of Ryan. At the
time that Ryan did exercise his judgment upon it and actually
became a party to it, which was on the first of October, 1851,
by the decree of the Circuit Court of the United States and the
act of the legislature of the fifteenth of February, 1851, he had
been superseded in this trust. As the agreement of compromise
Avas not made in pursuance of the authority vested in the as-
signees of the bank, the court should not have recognized or
enforced it.

But even it it had been well executed, we think its terms are
such as a court o£ equity should not enforce. It is true the

NOVEMBER TERM, 1858. 71

Thomas v. Sloo et al.

assignees were authorized to compromise debts due the bank ; but
in exercising this power they acted not in their own right but as
trustees ; and the courts will not enforce the specific performance
of an agreement of a trustee against the cestui que irusl,
although the agreement may have been made within the literal
scope of the authority vested in the trustee, where it is manifest
that the authority has been abused. Here was a large debt
secured by mortgage upon a large amount of property. Under
the agreement of compromise, the assignees of the bank are to
take a part of the property mortgaged, in discharge of the whole
•debt, and to release the balance, amounting to over five thousand
dollars in value, according to the estimate of appraisers. It was
the duty of the assignees to collect the debts due the bank, and
not to undertake to speculate in real estate. In that view of
their duty, it is manifest from the first inspection of the agree-
ment that it could not further the collection of the debt, but
might very probably result in the loss of a part of it. At least
it amounted to a release of a part of the security without any
corresponding benefit or consideration. Before the agreement
was made, the assignees were entitled to have the whole property
sold, and the proceeds applied in satisfaction of the debt. Under
the agreement, if valid, they could only realize the value of a
part of it, without any possibility that the part not realized would
bring any more than as if the agreement of compromise had not
been made. Where, then, was the possible benefit to the trust
fund from the compromise, while there is no difficulty in pointing
out the probable loss ? We do not hesitate to say that this was
not such a compromise as was contemplated by the law, which
authorized them to make compromises, (a) The design was to
authorize them to recover a part of a debt and to release the whole
where the debt was not secured ; but it was certainly intended
that there should be a consideration for this entire release by the
security, as payment of a greater amount of the debt than was
already secured. The very idea of a compromise suggests an
advantage to be derived to the creditor, more than he is supposed
to have the means of enforcing, in consideration of his extin-
guishing the whole debt. It is reasonably supposed that a debtor
will make an extra effort through his friends or otherwise to pay
a greater proportion of a debt that the creditor is sure of
collecting, in consideration that the balance of the debt not
paid shall be extinguished, so that it cannot embarrass him
in the future. The release of the equity of redemption
to a part of the land mentioned in the mortgages, did not
make them more valuable or more salable than they were
before, and the trustees were entitled to have them sold, and

(«) Morris v. Thomas, 17 111. R. 113 ; Governor v. Lagow, 43 111. R. Ul

12 MOUNT VERNON.

Hinde et al. v. The Wabash Navigation Company.

tlieir full value applied upon the debt, as well before as after the
compromise.

Where, then, was the justice in, or justification for, the release
of five thousand dollars' worth of the security ? It could no t be
in the release of dower which was to accompany the release of the
equity of redemption, for the wife of the mortgagor had joined
in the execution of the mortgage, and the title to be derived
under a foreclosure of the mortgage was every whit as good as
it could be under a voluntary release of the equity of redemption.
We do not hesitate to say that this agreement, had it been
executed with all formality, is not such an agreement as a court
of equity should enforce.

W^e were asked to enter a final decree in this court ; but we
think that in cases of this kind, where something has to be done
in execution of the decree, as in foreclosure of a mortgage, that
the more convenient practice is to remand the suit with instruc-
tions to the circuit court to enter a decree in conformity to
the views of this court, and see that it is duly executed. Such will
be the course pursued in this case. The decree of the circuit
court must be reversed and the suit remanded, with directions to
the circuit court to enter a decree setting aside the agreement of
compromise, and foreclosing the bank mortgages, taking care to
preserve the equities of prior incumbrancers where such exist. It
IS hardly necessary to state, that in reference to the three mort-
gages which are averred to have been executed and recorded, or
tiled for record simultaneously, the proceeds of the mortgaged
premises should be distibuted^jro rata.

Decree reversed.

James B. Hinde et al., plaintiffs in error, and Jamee B. Hinde
and Jacob Lesker et al., plaintiffs in error v. The Wabash
Navigation Company, defendants in error.

ERROR TO WABASH.

Where the charter of a navigation company authorized them to enter
upon the lands adjoining the worlcs to be constructed, and talie ma-
terial therefrom, leaving the owner of the land to apply to the circuit
court for an assessm'ent of damages, the owner of material taken by

NOVEMBER TERM, 1853.

Hinde et al. v. The Wabash Navigation Company.

contractors in tlie employ of the company, under tlie provisions of the
charter Avhicli is applied to the works to be constructed, may recover
compensation from the company for the material so taken.

In these cases, similar proceedings were taken to recover
damages, by assessment, for certain timber and material taken
and used by the defendants in error, the property of the plain-
tiffs in error. The defendants in error pleaded that a portion
of the material for which compensation was sought, was taken
and used by Samuel and Isaac Culbertson, who were con-
tractors with the defendants in error for the construction of the
dam and lock about which the material had been used, and
that any entry upon the lands in question, by the said Culbert-
sons, was unauthorized by the terms of the contract between
them and the defendants in error. A portion of the material
used had been taken by the defendants after the contract with
the Culbertsons had been, declared abandoned. Commissioners
were appointed, who assessed the damages in separate items,
distinguishing between that done by the defendants and that
done by the Culbertsons, as contractors. The circuit court, on
the report of the commissioners, confirmed only so much of it
as awarded damages for the material taken by the defendants,
rejecting the damages assessed for the period when the Cul-
bertsons were contractors.

These causes vrere heard before S. S. Marshall, Judge, at
August term, 1852, of the Wabash Circuit Court.

C. Constable, for plaintiffs in error.

W. H. Underwood and Roberts, for defendants in error.

Caton, J. The precise question raised in these cases was
argued and decided at the last term of this court in this divis-
ion, in the case of Lesher v. the same defendants. But as the
question was a new one, and of considerable importance, in
view of the many works of internal improvements which are
in progress in this State under charters in some respects similar
to the one presented in this case, we thought it proper to allow
the question to be again argued, that it might be again care-
fully considered. It has been thus considered, and we are of
opinion that it was properly decided.

It is true that a contractor is not, in all cases and for all pur-
poses, to be considered the servant of the principal or employer,
.so as to subject the latter to liability for his tortious acts ; and
this is generally the case where the contract is in reference to

74 MOUNT VERNON.

Hinde etal. v. The "Wabaeli Navigation Company.

the management of personal property. If I hire a drover to
drive a drove of cattle to market for me, and in the execution
of his contract, he or his servants commit a trespass, or allow
the cattle to commit a trespass, I am not liable ; a different
rule, however, has been recognized by high authority, where the-
contract is to be performed upon fixed and immovable property.
Thus in the case of Slye v. Edgely, 6 Esp. 6, the owner of
premises contracted with a bricklayer to make a sewer, which
the latter negligently left open, in consequence of which the
plaintiff fell in and broke his leg ; and the owner was held
responsible for this negligence of the contractor. In Bush v.
Steinman, 1 Bos. & Pull. 404, the owner of a house contracted
with a surveyor to make certain improvements for a stipulated
price. The surveyor sub-let the whole contract to a carpenter.
The carpenter contracted with a bricklayer to do a part of the
work, and the bricklayer contracted with a lime-burner to fur-
nish the lime. The servant of the lime-burner placed the lime
in the road near the premises, by which the plaintiff was in-
jured ; and it was held, after much consideration, that the
owner of the house was liable for this tortious act of the ser-
vant of the fourth sub-contractor. These cases were referred to
by Littledale, J., in the celebrated case of Laugher v. Pointer,
5 Barn. & Ores. 547, where he points out the distinction be-
tween the acts of contractors, where the contracts are made in
reference to or are connected with fixed and immovable prop-
erty, and where they relate to personal or movable property.
That was a case where the owner of a carriage hired a stable-
keeper to furnish him for a day with horses and a driver, and
through the carelessness of the driver the plaintiff was injured,
and the court was equally divided as to the liability of the
owner of the carriage. That case was considered in 1826. In
1840, that precise question was again up in the case of Quar-
man v. Burnett, 6 Meeson & Welsby, 499, when the court
unanimously decided that the owners of the carriage were not
liable for the carelessness of the driver. In that case, Parke, B.,
who delivered the opinion of the court, referred to the two first
cases with approbation. He said: "It is true that there are
cases — for instance that of Bush v. Steinman, Slye y. Edgely,
and others, perhaps among them may be classed the recent case
of Randleson v. Murray, 8 Ad. & Ell. 109 — in which the occu-
piers of land or buildings have been held responsible for acts
of others than their servants, done upon or near or in respect of
their property. But these cases are Avell distinguished by my
brother Littledale, in his very able judgment in Laugher v.
Pointer."

NOVEMBER TERM, 1853.

Hinde et al. v. The Wabash Navigation Comiiany.

Again in 1842, in the case o£ Rapson v. Cubit, 9 Mees. &
Wels. 709, the same cases were referred to and the distinction
again approved by the court, who quote from the opinion of
Littledale as follows: "The rule of law may be that in all
cases Avhere a man is in possession of fixed property, he must
take care that his property is so used and managed that other
persons are not injured, and that, whether his property be man-
aged by his own immediate servants or by contractors or their
servants. The injuries done upon land or buildings are in the
nature of nuisances, for which the occupier ought to be charge-
able when occasioned by any acts of persons whom he brings upon
the premises. The use of the premises is confined by the law to
himself and he should take care not to bring any persons there
who do any mischief to others."

Thus we see that cases are not wanting to maintain, upon
common law principles, the liability of the navigation company,
who are the owners of the improvement, for the tortious acts of
the contractors done in the execution of their contract, and
near to and in respect of the company's premises. Here the
timber cut was immediately adjoining the works of the com-
pany, and was placed upon and attached to them, and directly
enhanced their value. But beyond this the entire work was
executed under the immediate supervision of the engineer of
the company, which gave at least the apparent sanction of the
company to the acts of the contractors. I have referred to these
few cases to show that the liability of the company might be
maintained upon common law authority, but without the inten-
tion of placing our decision upon that ground. Indeed these
are not common law actions to recover damages, but they are
special proceedings under the charter of the company, and they
cannot be sustained unless the liability is created by the char-
ter.

By the charter, as was stated in our former decision, Lesher
V. Wabash Navigation Company, 14 111. 85, the company
might enter upon the lands adjoining to their works and take
therefrom necessary materials, and the owner of the land might
file his petition in the circuit court, to have appraisers appointed
to assess his damages, for which the owner was entitled to a
judgment against the corporation. It is unnecessary now to
inquire whether the legislature could authorize the corporation
to enter upon the land of individuals and take therefrom mate-
rial, which was required for the work, without first making com-
pensation to the owner, at least none but the owner could
object to the exercise of such power, and when he allows his
property to be taken for the use of the work, without objecting

76 MOUNT VERNON.

Hinde et al. v. The Wabash. Navigation Company.

that the authority was unlawfully conferred upon the company,
he may seek his remedy in the mode provided in the charter,
which professes to give the right. The question, then, arises
upon the provisions of the charter. By the charter, the com-
pany was authorized to take this timber for the use of the work,
and when taken the owner might seek his remedy under this
proceeding. The company was not required by the charter to
ask his consent, nor was he bound to forbid them in order to se-
cure his remedy. The timber was taken by those who were
in the employ of the company and put into the works of the
company, as the charter authorized. Vv^e are still of opinion
that the owner had the right to consider this as done by the
company, in the exercise of the right conferred by the charter.
Although contractors, they were, when exercising the rights con-
ferred by the charter, the agents or servants of the company :
although they might not be the servants of the company so as
to render the corporation liable for their acts, whenever they
went beyond the provisions of the charter, and performed acts
which were not done in the exercise of the powers conferred
upon the company by the charter. The same provision applies
to damages done to land by excavations for or the erection of
the locks or dams upon the land of an individual. Suppose
this claim were made for the value of the land upon which a
lock had been built by these contractors. In occupying the
ground for the lock the contractors were certainly the agents of
the company, and yet the same clause of the charter which au-
thorized them to occupy the ground for the lock, also authorized
them to take this timber. The same law which required the
owner to submit to, and authorized the contractors to do one of
those acts, also required him to submit to the other, and pro-
vided for the same mode of redress. If the contractors were
authorized to do one act, they were equally authorized to do
the other, and the owner had just as much reason to suppose
that one was done under the charter as the other. Suppose a
railroad company is authorized to condemn the right of way
one hundred feet wide across my land, and before condemna-
tion the engineer goes on and lays out the track of a proper
width, and for ah embankment four feet high, and under those
specifications a contract is let, without any provision in it as to
where the earth is to be procured for the embankment, and the
contractor excavates the adjoining land within the hundred feet
to make the embankment, shall I be told by the company that
they only want the right of way upon which the embankment
is actually made, and be turned round to an irresponsible
contractor for the damage done by digging up my soil, although

NOVEMBER TERM, 1853. 77

Hinde et al. v. The Wabaali Navigatiou Company.

when I saw it done I knew the company had the right to take
that very soil for that very purpose, whether I willed it or not, and
that their charter compelled them to pay me for it ? If it be said
that custom has created an implied understanding in such a case,
that the company and not the contractor shall furnish the earth
with which to make the embankment, my neighbor, whose rock
were taken from his quarry within the hundred feet by a con-
tractor to construct a bridge, would feel it very unjust that his
rights were not equally protected. The company have the right
of determining who shall go upon their works, and for them
exercise the rights conferred upon them ; and, as between them-
selves and the contractor, may make such arrangements as they
please, while the owner of the land, who may be injured by it,
is perfectly powerless and liable to be intruded upon by any
one whom the company sees fit to send to do the work, and it fs
but just and right that whoever does that work as authorized to
be done by the charter, should be held to be the agent of the com-
pany for that purpose ; especially when done on or near the visi-
ble possessions of the company. For acts done at a distance from
the visible works of the company or line of the road, and where
the owner of the property taken might not reasonably suppose
that it was taken under the provisions of the charter authorizing
it to be taken, a different rule of responsibility most likely should
prevail ; but when done upon or near the work authorized to be
constructed, and the property taken is such as the charter au-
thorizes the company to take, those who take it for the execu-
tion of the work should be held to take it under the charter, and
to be the servants or agents of the company, unless the owner is
notified to the contrary, that he may timely seek other means
for protecting his interests. If there be a propriety in holding
the owner of premises responsible for the tortious acts of the
contractor, while engaged in fulfilling his contract upon or near
or in respect of the premises, how much greater the propriety of
holding the owner responsible for those acts of the contractor
in the execution of his work, which the owner was authorized
to do by special legislation, in order to enable him to do that
very work. We are still well satisfied that the owners of the
premises were justified in presuming, when they saw this tim-
ber taken by those in the employ of the company and placed in
their works, that it was taken under the authority conferred by
their charter, and that he might seek his remedy against them
in the mode provided by the charter. The work was executed
by the contractors under the immediate supervision and direc-
tion of the engineer of the company, who must have been
aware of the provisions of the charter authorizing the lumber to

MOUNT VERNON.

Scofield V. Bessenden et al.

be taken, and cognizant of the fact that it was being taken ; and
had it not been the design of the company to see them paid for
it, it was his duty to give notice that it was not taken under the
authority conferred by the charter, that the parties interested
might at once put a stop to the trespass, or otherwise provide for
their security. This rule we are satisfied, will better promote
the interest of companies constructing public works under similar
charters as well as the owners of land or material taken for the
use of the works. A different rule would at once compel every
proprietor of land or material wanted for such purposes, to resist
the appropriation until he had secured his compensation, no mat-
ter how favorably inclined he might be to promote the progress
of the work. The judgment of the circuit court must be
reversed, and judgments entered in this court for the value of the
lumber taken, as shown by the agreed case.(a)

Judgment reversed.

(a) Losher v. Wabash, &c., 14111. R. 88 and notes.

William Scofield, plaintiff in error, v. John Bessenden and
James Keuner, defendants in error.

ERROR TO EDWARDS.

Where depreciated band paper is received of a purchaser at a sheriff's
sale, by order of the plaintiff in execution, it is received as so much
money ; and neither the judgment debtor nor a subsequent judgment
creditor can redeem by paying the cash value of the depreciated paper,
but he must pay the full amount, as it was received of the purchaser.

This suit was heard at the April term, 1852, of the Edwards
Circuit Court, by S. S. Marshall, Judge, who dissolved a pre-
liminary injunction which had been granted, and dismissed the
bill.

The bid of Bessenden was one thousand dollars, the tender of
Scofield, as judgment creditor, to the sheriff, was for $675.00.

The statement of the case is sufficiently made in the opinion o£
the court.

W. H. Underwood, and R. F. Wing ate, for plaintiff in
error.

C. Constable, for the defendants in error.

NOVEMBER TERM, 1853. 79

Scofield r. Bessenden et al.

Caton, J. The bank obtained a judgment against Pickering,
upon which his hxnds' were sold to Bessenden, who paid the
amount of: his bid in the bills of the bank, at their nominal value,
the bills being at that time uncurrent. From this sale the judg-
ment debtor never redeemed. Subsequently Scofieli obtained a
judgment against Pickering, and betore the expiration of the
fifteen months applied to the sheriff to redeem from the sale as
a judgment creditor of Pickering, and for that purpose ten-
dered to the sheriff in cash the value of the notes of the
bank which had been paid by Bessenden upon his purchase, with
ten per cent, interest. At the tim^ of the sheriff's sale, it was
openly proclaimed by him that the notes of the bank would be
taken for the land. The sheriff refused to accept the complain-
ant's tender as a redemption of the premises, and this bill is filed
to compel him to do so.

Our statute gives the iudgment creditor the right to redeem bv
paying "the sum of money which may have been paid on the
purchase thereof, or the amount given or bid is purchased by the
plaintiff in the execution," &c. The question is, What was the
sum of money paid on this purchase ? The purchaser paid
one thousand dollars in the bills of the bank. One thing
seems clear, that he either paid this amount in money, or he
paid no money at all. The bills were either received as money
or as property. If they were received by the plaintiff in exe-
cution as so much money, then that amount of money was paid
on the pui'chase. They were not paid or received as six hund-
red dollars in money, which was their actual cash value in the
market. It was the right and the duty of the bank to receive
its own bills as cash, at their nominal value. It was the right
of the judgment debtor to have paid off the judgment in the
bills of the bank at their nominal value. This payment was
as to both the judgment creditor and the judgment debtor,
a payment of so much cash ; for the judgment was satisfied
to that amount. The judgment creditor could not have been
compelled to have taken six hundred dollars in specie in satisfac-
tion of this bid, nor any thing less than the one thousand
dollars. Had the purchaser not been able to pay the bid in the
bills of the bank, he would have been obliged to have paid
the whole amount of the bid in specie. Nearly all our paper cir-
culation at that time was at a greater or less discount, and
the bank might, if she had seen proper, have received other paper
money in satisfaction of the bid, and had she done so, could
a redeeming judgment creditor have compelled the purchaser to
receive less in cash, than he had paid in currency, which was
received as cash? If this iudgment creditor has a right to

80 MOUNT VERNON.

Lavender et al. i\ Latimer et al.

redeem by paying six hundred dollars and interest, the judgment
debtor had the same right during the twelve months, and thus he
might have paid one thousand dollars of the judgment with six
huncbed dollars in money.

But the statute does not contemplate any such depreciated
redemption. The cash value of this paper was a question of fact
and open to controversy, and the law has furnished the sheriff no
means of trying this question of fact so as to be binding on the
parties and protect himself. If he is obliged to receive the cash
value of the paper as a redemption, then the purchaser was
obliged to receive the same of him, but the purchaser might have
insisted that the paper was worth more than the sheriff had sup-
posed and had accepted, and if upon a trial between the pur-
chaser and the sheriff a jury had found such to be the case, to say
the least of it, the sheriff must have sustained the loss. So on
the other hand, had the sheriff misjudged as to the value of the
paper, supposing it to have been Avorth more than a jury should
find, and refused to accept the amount tendered, he would have
again rendered himself liable, although acting in the utmost good
faith. Can it be that the effect of this statute is to place the
sheriff in such a dilemma ? Such was never the intention of the
legishxture, nor is it the true construction of the laAV. The bill
was properly dismissed, and the decree of the circuit court must be
affirmed.

Decree affirmed.

Lewis Lavender f/ al., Administrators, &c., plaintiffs in error,
V. Ross Latimer et al.. Administrators, &c., defendants in
error.

ERROR TO HARDIN.

A sale made under a decree will not be set aside on motion, as to innocent
purchasers, because the commissioner named in the decree to sell the
premises, who was also sherifl', sold upon executions issued with and in
conformity to the decree, if the proceedings under such executions
were in all respects regular and in compliance with the decree, if the
return also shows that the officer sold under the autliority of the decree,
as well as of the execution.

At the October term, 1846, o£ the Hardin Circuit Court, a
decree upon foreclosure of mortgage, at the suit of Richard S.
Threlkeld et al. v. The heirs of James Anderson, the decree
ordered that execution should issue to be levied upon the mort-
gaged premises or so much thereof as would be sufficient to pay

NOVEMBER TERM, 1853. 81

Lavender et al. v. Latimer et al.

the demand, interest, and costs, and that Lewis Lavender (who
was sheriff) be appointed commissioner, and after advertising' in
four public places for six weeks previous to the day of sale, and
that the same shall be sold at the court house door in Elizabeth-
town on some county court day, &c. On the 11th of November
following, execution, directed to the sheriff, was issued on the
decree, whereby he was commanded to make of the estate of James
Anderson, deceased, the money demanded by it. This execution
was levied upon the premises specified in the decree. A. copy of the
decree was also given to the sheriff, who was also the commissioner
named in the decree.

At the October term, 1847, Denning, Judge, presiding, upon
motion, the execution issued was declared illegal, and unwarranted
by the decree, and that the sale of the mortgaged premises of
said Anderson, deceased, under said execution, was irregular and
not in conformity with the true decree of the court, and was there -
fore void ; the sale was set aside, and the heirs and other repre-
sentatives of Anderson restored to the possession of the premises
sold.

The mortgaged premises sold under the execution was purchased
by strangers to the record and proceedings.

At the same time, the circuit court amended the decree form-
erly rendered, so as to make it conform more strictly with the
minutes of the judge, who ordered the rendition of the decree.

To correct the decision setting aside the sale, &c., this writ of
error was sued out.

Wesley Sloan and W. J. Allen, for plaintiffs in error.
J. M. Warren and R. F. Wing ate, for defendants in error.

Caton, J. Whether the court decided properly or not in
determining to amend the decree originally entered, so as to
make it conform more literally to the minutes of the judge, we
are of opinion that the sales should not have been set aside upon
motion. The original decree as entered adjudged that the complain-
ants should recover severally the amounts of their respective mort-
gages, appointed Lewis Lavender a commissioner to sell the mort-
gaged nremises to satisfy the decree, and " that execution for said
sums be levied upon the mortgaged premises," and that the sale
should be made at the county seat "on some county court day," sub-
ject to a lease specified. The minutes of the judge are as follows :
"Decree of foreclosure and sale by Lewis Lavender, commission-
er, &c., subject to lease, and on giving usual notice of sale, &c.,

82 MOUNT VERNON.

Lavender et al. v. Latimer et al.

as under execution." General executions were issued for the
sums specified in the decree, and with these were sent out copies
of the decree. These were levied by Lewis Lavender, who was
sheriff and commissioner, upon the mortgaged premises, which
were duly advertised and sold to third persons, on the third day
of Junuary, 1843. Lavender returned, that "By virtue of the
within execution, and by order of a decree rendered," &c.,
describing it, he had levied upon, advertised, and sold the prem-
ises.

The decree as amended forecloses the mortgages, adjudges that
the complainants shall recover severally the amount due on their
respective mortgages, appoints Lewis Lavender commissioner to
sell the mortgaged premises, but omits all that part of the decree
as originally entered, which related to the execution. This amend-
ment, of course, if rightfully made, must relate back to the orig-
inal entry of the decree, as entered 7iu7ic jjro tunc. Whether we
consider this sale as made under the decree as originally entered,
or under the decree as amended, or whether we look to the judge's
notes of the decree to be entered, to determine in what manner the
sale Avas to be made and the decree satisfied, I am of opinion that
the sale should not have been set aside. The return ol: the officer
shows that the proper premises were sold ; that they were properly
advertised, and that they were sold by the proper oificer. The
return of Lavender shows that he sold in pursuance of the auth-
ority conferred upon him both by the execution and the decree.
Each authorized him to make the sale, and by the first decree
his authority from each was ample. The regularity of the sale
under that could not be questioned. And if we look alone to the
amended decree and consider every thing which was done as done
under that, the sale was still good. The return still shows that the
sale was made under the authority conferred by the decree ; and
because he had an execution in his hands reiterating the mandate
of the decree, shall it be said that the sale was therefore improp-
erly made ?(a) For the first time we hear the objection raised,
that an officer acted under too much authority instead of not
enough. Lideed, the authority under each is the same, and the
only peculiarity is that there is in this case a reiterated command
to make the sale ; once given in the decree and again in the exe-
cution. Suppose the execution was simply void and issued without
any authority whatever, it is difficult to perceive how that vitiates
the sale and prejudices the riglits of innocent purchasers, so long
as there was ample authority for making the sale. Both decrees
certainly show such authority, and the minutes of the judge show
that he designed that the sale should be conducted in all things

(«) Kelly 1). Chapman, 13 111. R. 530.

NOVEMBER TERM, 1853. 83

Lavender et (d. v. Latimer et al.

precisely as it was conducted. He designed that Lewis Lavender
should sell the premises which were sold ; and that the sale
should be conducted as under an execution, with the usual
notice Every thing here indicated was strictly pursued. If he
was to sell as if under an execution, what harm was there that he
had an execution ? How could it prejudice the interests of the
heirs of the mortgagor, that the officer had an execution in his
pocket as well as a copy of the decree, when the law only requir-
ed that he should have the latter ? If the execution was unau-
thorized and void, how should it be capable of destroying that
which was otherwise well done ? Even if the return of the officer
showed that he supposed he was acting alone under the authority
conferred by the execution, and without any direct authority con-
ferred by the decree, I know of no positive rule of law which
would render the sale void, or would justify the court in
declaring il void, so long as he had by the decree ample
authority to do the very act which he did do, and in the pre-
cise mode which he pursued. Suppose, in any ordinary case
of the foreclosure of a mortgage, the clerk, in addition to
furnishing the master or commissioner with a copy of the decree,
should send out with it a mandate in any form which he might
choose to adopt, repeating the command to make the sale, and
the master or commissioner should suppose that he was acting
under the immediate authority of such mandate and should
return that he had sold accordingly, and should also show by
his return that he had pursued precisely the commands of the
decree in making the sale, would the court, at a subsequent
term, upon mere motion, set aside that sale which had been
made as it commanded, regardless of the rights of innocent
purchasers ? But that is a stronger case than this, supposing
the amended decree alone in force, for here the officer shows
that he did proceed under the authority of the decree as well as
the execution. How much stronger, then, the rights of pur-
chasers, when they find upon the only records of the court
which they are bound to examine, a formal decree, fully author-
izing the sale under the execution as well as the decree. We
must have some regard to the substance of the transaction, and
the ends designed to be accomplished. These ends, it is true,
must be accomplished in a legal mode. But here we think the
sale Avas not illegal. It was made by the proper person, after
the proper notice, at the proper time, and in all respects in the
precise mode directed by the judge in his minutes, and by the
decree as originally entered and as amended. The rights of no
one have been violated or prejudiced. The premises brought
as much as they would have brought if no execution had gone

84 MOUNT VERNON.

Zimmerman v. Zimmerman.

out with the copy of the decree, and every thing had been con-
ducted as it -was designed.

An objection was made on the argument as applicable to the
proceeding under the decree originally entered. That decree
directed that the sale should be made on some county court day.
This undoubtedly meant, on some day during the term of the
county court. But there is nothing in the record to show that the
county court was not in session on the fourth of January, one
thousand eight hundred and forty-seven. It is true that the law
fixed the first day of the regular quarterly term of that court to
be the first Monday of the preceding month ; but the court can-
not say that that term had not yet closed, or that a special
term had not been called, which was then in session. But
the return of the officer settles this question, for that says the
sale was in pursuance of the decree, and if that is true the
objection is answered.

We are of opinion the circuit court erred in making the order
which was entered, and that must be reversed, so far as the
judgment alfects the plaintiffs in error. This reversal, of course,
does not affect the judgment below as to those who have not joined
in the writ of error.

Judgment reversed.

Jacob Zimmerman, plaintiff in error, v. Peter Zimmerman,
defendant in error.

ERROR TO JACKSON CIRCUIT COURT.

It is not competent to show by parol proof, that a justice of the peaee
intended to enter a different judgment than the one which he recorded
in his docket.

Parol evidence is admissible to show what was adjudicated upon, but not
what the adjudication was.

A judgment entered by a justice of the peace showed that the parties
appeared before thejustice and went to trial, and after hearing the testi-
mony, he rendered judgment against the plaintiff for cost; this was held
to be a judgment in bar, and that it constituted a good defense to a
subsequent suit brought upon the same cause of action.

This action was originally brought before a justice of the
peace of Jackson county upon a note of hand, who rendered
judgment in favor of the plaintiff for twenty dollars and thirty-

NOVEMBER TERM, 1853.

Zimmerman v. Zimmerman.

nine cents, from T\-liich the plaintiif took an appeal to the circuit
court. At the May term, 1851, of the circuit court, the cause
-was tried before W. A. Dennixg, circuit judge, without a jury,
who rendered a judgment in favor of the plaintiff below for
forty dollars and ninety cents and costs, to reverse which this
writ of error is brought.

The bill of exceptions shows that upon the trial the plaintiff
offered in evidence a note of fifty dollars payable in property to
John H. Rumley, and executed by the defendant below, dated
the 7th of February, 1846, and rested. Rumley assigned the
note to Peter Zimmerman, and he to Thomas Croft.

The defendant then offered in evidence the transcript of a
judgment from the docket of Napoleon Collins, a justice of the
peace, in which Thomas Croft, assignee of John H. Rumley,
was plaintiff, and Jacob Zimmerman was defendant. After
the introductory part that judgment states, "At the time set for
trial^ the parties met and proceeded to trial. After hearing the
testimony, judgment is therefore rendered against the plaintiff
for costs of suit." The plaintiff then introduced the justice,
Collins, for the purpose of explaining what kind of a judgment
he intended to render in that cause, who testified, that at the
time there was nothing said about a non-suit ; that he considered
that Peter Zimmerman had broken his contract with Jacob
about the matter, and that he had no right to claim the money
of Jacob. He thought he should take the property, and his judg-
ment was entered only to effect that object ; he did not consider
the note paid. Upon these grounds he rendered judgment, that
the plaintiff should pay the costs ; that the parties went into a
full investigation on both sides, and the plaintiff did not ask to
submit to a non-suit ; that the note then before the court was
the same note mentioned in the transcript.

C. G. Simons, for the plaintiff in error.
J. Dougherty, for the defendant in error.

Caton, J. It was not competent to show by parol evidence
that the justice of the peace intended to enter a different judg-
ment from the one which he recorded in his docket. It is as
important that the records of justices' judgments should remain
immutable and constitute the sure evidence of their adjudica-
tions, as of the higher courts. Upon the faith and stability of
those records rights are acquired, and transactions based, as
well as of other courts, and they should be relied upon as con-
fidently. If a justice of the peace may record one judgment

ILL. R. VOL. XV. 7

86 MOUNT VERNON.

Zimmerman v. Zimmerman.

in his docket, and then years after come up and overturn it by
testifying to another which he had kept in his memory, no sort
of confidence can hereafter be placed in the records of justices'
courts. The rights of parties there adjudicated would not
depend upon the written evidence of the judgments there found,
but would depend upon the memory of the officer making the
record. While the most trifling written contract cannot be
varied by parol evidence, it would be strange indeed if the
solemn judgment of a court of justice could be explained and
frittered away by the oral testimony of a witness. It would be
better to have no record at all, than that it should be rendered
thus uncertain and illusory. Parol evidence is frequently ad-
missible to show what was adjudicated upon, but not what the
adjudication was. This rule is equally applicable to the records
of justices' courts as to the records of other tribunals. In this
case the testimony of Mr. Collins, showing that the suit before
him was upon the same note which was offered in evidence
in support of this action, was properly admitted ; but it was im-
proper for him to state what kind of a judgment he intended to
enter, or what effect he intended should be given to that judg-
ment.(a)

The judgment Avhich was entered by the justice was clearly
a judgment in bar. It states that the parties appeared before
the justice and proceeded to trial ; and after hearing the testi-
mony, judgment is rendered against the plaintiff for costs of
suit. This is absolute and without qualification, and if it were
not held to be a judgment in bar, it might be difficult to find
.such a judgment where the plaintifi' is defeated, (i?)) Nothing is
said about a non-suit or discontinuance in any part of the record.
We think that the former judgment constituted a good bar to
the action upon the same note, and that the defendant was en-
titled to a judgment.

The judgment of the circuit court must be reversed, and the
cause remanded.

Judgment reversed.

(a.) Garfield v. Douglas, 23 111. R. 103 ; Haven et al. v. Green, etc., 38
111. R. 254 ; Wiley et al. v. Soutlierland, 41 111. R. 27.
(b) Gray v. Gillilan, post. 455.

DECISIONS

THE SUPREME COURT

OP THK

STATE OF ILLINOIS,

DECEMBER TERM, 1853, AT SPRINGFIELD.

Robert Bryan, plaintiff in error, v. Nathaniel S. Bates,
defendant in error.

ERROR TO SANGAMON.

In an action for assault, battery, and imprisonment, if the plea to it
professes to answer the assault, &c., and imprisonment, the &c. will
make the plea broad enough to answer the battery complained of.

The powers of the cities and their ministerial officers, and their min-
isterial duties, continue and were not changed by the new constitution.
And the city marshal of the city of Springfield has the power to arrest
without warrant, any offender, for violations of certain ordinances,
committed in his presence.

The principle laid down in the case of The People v. Maynard, 14 111.
Rep., does not affect the general police powers of cities, but has refer-
ence only to the judicial powers of mayors, acting as a court under city
ordinances.

This cause was heard before Davis, Judge, at June term,
1853, of the Sangamon Circuit Court. See opinion for state-
ment of the case.

W. Herndon, for plaintiff in eiTor.

W. J. Black & Stuart, and Edwards, for defendant in error.

SPRINGFIELD.

Bryan v. Bates.

ScATES, J. The action was trespass for assault, battery,
and imprisonment. The court sustained a demurrer to the third
and fourth special pleas, and overruled it to the second and fifth ;
and these judgments, by mutual consent, are assigned for error,
both parties abiding the demurrer. We deem it unnecessary to
examine the assignment of errors by defendant, in sustaining the-
demurrer to the third and fourth pleas.

The introductory part of the second and fifth pleas enumerates
and professes to answer the assault, &c., and imprisoning, and
keeping and detaining in prison, and justifies the same by alleging
that defendant was m'arshal of the city of Springfield, and as
such, it was his duty to preserve the peace and arrest, &c., all
ojffenders for violations of the city ordinances ; and that plaintiff
was drunk, in violation of a city ordinance ; that plaintiff dis-
turbed the peace by violent, tumultuous and offensive conduct,
and by obscene and unusually profane and offensive language, cal-
culated to provoke a breach of the peace, and in like violation of
the ordinances of the city ; all which were committed in his
view, wherefore he gently laid his hands upon him and imprisoned
him until he could take him before the mayor of the city, accord-
ing to law, which are the same supposed trespasses in the intro-
ductory part of these pleas mentioned, and none other, &c.(a)

We are of opinion that the decision of the court in overruling the
demurrer to these pleas was right ; that the powers of the cities
and their ministerial officers and their ministerial duties continue,
and were not changed by the new constitution ; and that under
the ordinances of the city of Springfield the city marshal has
the power to arrest without warrant, any offender, for violations
of those ordinances committed in his presence.

Objection was taken to the pleas that they do not answer the
whole declaration, for that a battery is alleged and not answered.
The introductory allegation is '*• as to the assaulting, &c.," the
said plaintiff, and imprisoning, which is broad enough. These are
justified by the moliier manus imposuit, for violations of the
ordinance in presence of the defendant, as city marshal, "and.
which are the said supposed trespasses," &c., in the intro-
ductory part of the pleas and in the " declaration mentioned."
The beating is included in the "&c." well enough, without setting
it out at length ; and, upon replication, plaintiff might show,
under the issue so tendered, that the officer exceeded his authority
by an excessive battery.

The ordinance set forth in the plea expressly authorizes the
marshal to arrest, without warrant, any offender, for violations
of the ordinances committed in his view. And this is in con-

(rt) Main v. 'McQ'A.vly,post. 442,

DECEMBER TERM, 1853. 89

May V. Baker.

formity to the general law in relation to the police of the State.
1 Hale's PL C. 587, 588 ; Rev. L. 1845, 190, § 202.

The principle laid down in the case of The People, ex ret.
City of Rockford v. Maynard, 14 III. Rep. 419, does not affect
the general police powers of the cities, nor the ministerial officers,
or ministerial duties, but only the judicial powers of the mayor's
•court under those ordinances.

Judgment affirmed.

Clinton May, appellant, v. John Baker, for use of S. W. Rob-
bins, appellee.

APPEAL FROM SANGAMOX.

Equitable interests in choses in action are not subject to garnisliee pro-
cess. Legal rights only can be garnisheed under our statute.

The proceeding by attachment is in derogation of the common law, and
depends entirely upon the statute for its support.

Tins cause was heard before Emerson, Judge, at June term,
1853, of the Sangamon Circuit Court.

This was a case in the Sangamon Circuit Court on appeal from
a justice of the peace, in which Baker was plaintiff, and May
defendant On the trial in the circuit court, the plaintiff offered
in evidence two notes given to plaintiff by defendant, and
closed his case. Defendant then offered in evidence garnishee
proceedings against him as the debtor of one Lock ; that said
Lock was the owner of said notes at the time the proceedings
were had against defendant ; and that upon his answer as gar-
nishee, judgment was rendered against him for the amount of
Lock's indebtedness. This evidence, offered in the circuit court
by defendant, was rejected. A motion for a new trial was over-
ruled, and the ruling of the court excepted to. May, the defend-
.ant, appeals.

E. B. Herndon, for appellant.

S. W. RoBBiNS and S. T. Logan, for appellee.

'Oaton, J. The question in this case is, whether the court

90 SPRINGFIELD.

May V. Baker.

decided properly in rejecting the record of the judgment of the
justice of the peace in favor of Spear and against May, as gar-
nishee of Lock, which was set up as a defense to these notes.
The notes sued on were executed by May, and made payable
to Baker. The defendant below offered to prove that Lock had
obtained possession of the notes and refused to give them up
to Robbins, who claimed to own them. Whereupon Robbins
sued him in trover and obtained judgment for the value of the
notes, and then offered in evidence the record of the garnishee
proceedings before the justice, in which May had answered that
he was indebted to Lock on these notes, who, he was informed,
was the assignee of the notes which were then overdue, and
that he had no knowledge of the notes having been transferred
by Lock, and that, on the day of his answer, Lock had demand-
ed money of him on the notes. Upon this answer, the jus-
tice rendered the judgment against May, as a debtor of Lock,
in favor of Lock's creditor. Proof was also offered, to show
that this judgment was subsequent to that of Robbins against
Lock in the trover case, for the value of the notes, and that
Robbins had taken the notes in satisfaction of that judg-
ment.

We think all this evidence was properly rejected by the cir-
cuit court. With the understanding we have of our statute,
the inquiry as to whom the notes in equity belonged to, was
entirely immaterial. We think that only legal rights can be gar-
nisheed under our statute, and that the justice of the peace had
no right to render a judgment against May, as the ■ debtor of
Lock, admitting that he had an equitable interest in the notes,
and even had possession of them. The garnishee process may
be served upon those "who are in anywise indebted to the
defendant ;" and the person thus served shall "answer upon oath
what amount he or she is indebted to the defendant in the
attachment." If the garnishee "shall upon oath deny all indebt-
edness to the defendant in the attachment," "the justice shall
forthwith discharge him, unless the plaintiff in the attachment
shall satisfy the justice by other testimony, that the garnishee
is indebted to the defendant in the attachment ;" "in which case,
the justice shall give judgment in the premises, according to
the right and justice of the cause, and issue execution, as in
other cases. We think that a legal indebtedness is here
meant ; such an indebtedness as could be enforced in a court
of law, in an action brought by the defendant in the attach-
ment against the garnishee. This attachment proceeding is
strictly of a legal, and not of an equitable character, and being
in derogation of the common law, it is dependent entirely upon

DECEMBER TERM, 1853. 91

May V. Baker.

the statute for its support. (a) It could never have been the in-
tention of the legislature to allow the justices' courts to go beyond
the legal liabilities of the garnishees, and inquire into the equita-
ble claims of other persons than those in whom the legal title to
the debt was vested, and who were not tefore the court to protect
those rights. It is not pretended that the rights of the legal holder
could be barred or affected by such proceeding ; and so long as
that is the case, it would often subject garnishees to the greatest
hardships and the grossest injustice, to compel them, who inmost
cases would be totally ignorant on the subject, to defend the equit-
able title of the legal holder, and if they could not successfully
defend such equitable right, render a judgment against them, and
thus subject them to the liability of paying the debt twice. No
party should ever be compelled to pay a debt by a judgment at
law, unless the record of that judgment will protect him from a
second demand to pay the same debt. He may, it is true, place
himself in that dilemma by his own injudicious admissions ; but
then it is his own fault, and not that of the" law. But where he
admits nothing but the truth, and those admissions show that the
legal title is in another than the defendant in the attachment, he
should not be subjected to a judgment. Had a suit been brought
by Lock upon these notes, so long as the legal title was in Baker,
no judgment could have been rendered against May, although he
might have stood up in open court and admitted, in the broadest
and most unequivocal terms, that the entire equitable interest was
in Lock.

Whenever the legislature has seen fit to subject equitable rights
and interests to legal process, they have expressed themselves in
clear and positive terms. This is the case with the statute which
subjects equitable interests in land to sale upon executions at law ;
and we cannot doubt that they would have expressed themselves
with equal clearness, had they designed to have subjected equitable
interest in choses in action to the garnishee process. The embar-
rassments which such a provision would produce must have been
readily foreseen, and were no doubt intentionally avoided. We
are of opinion the circuit court decided properly in rejecting the
evidence offered, and in rendering judgment for the plaintitF for
the amount due upon the notes, and that judgment must be
affirmed.

Judgment affirmed.

(a) Equitable interests in lands are subject to attachment. Laws of
1869, p.

92 SPRINGFIELD.

Clement et al. v. Evans.

Jajies C. Clement etal.^ plaintiffs in error, v. Augustus H.
Evans, defendant in error.

ERROR TO SCOTT.

Smith, without authority from Evans the owner, contracted to sell
certain land to Clement. Subsequently, Evans approved of the trans-
action, so far as to make a quit-claim deed of the premises to Clement,
and delivered it to Smith, as an escrow, with authority to deliver
the deed to Clement upon the performance of certain conditions ; after
this. Smith abandoned Evans' interests, and confederated with Clem-
ent to defraud Evans out of whatever interest he might have in the
land. Smith delivered the deed to Clement without the performance
of the conditions on which alone both he and Clement knew it was to
be delivered.

Held, that a court of equity would decree the cancellation of the deed
under the circumstances, and also that Clement restore the possession
of the property, and that he account for the rents and profits.(rt)

Held, also, tliat Clement, who had purchased an adverse title, was not
bound to surrender that, and that he might lawfully acquire an adverse
title. And it was further held, that Clement could not now claim the
land, under the deed from Evans, by complying with the original con-
tract made with Smith ; that it was too late to ask specific performance
of the contract, after having evaded and repudiated it.

This bill states, that in September, 1847, Evans was owner
in fee-simple of 220 acres of land in controversy ; that he stip-
ulated verbally with Smith that he might sell the land to Clement,
and that he (Evans) would execute a quit- claim deed for it, deliv-
erable to Smith as an escroAV, he to have executed by Clement a
deed of trust on same lands to secure a note of ^1,000 to Evans,
payable 1st January, 1819, as also deed of 128 acres of land in
Madison county, concurrently with the delivery of quit-claim deed
to Clement. Evans charges that this Avas the understanding -with
all parties.

That, on the 22nd of October, 1817, he made said quit-claim
deed, and on the 19th March, 1848, placed it with deed of trust
to be executed by Clement, in the hands of Smith, to be exe-
cuted pursuant to the foregoing arrangement. Evans says that
he received $77.17 of purchase money of Clement in St. Louis
4th November, 1848, and gave him a receipt therefor, to be ap-
plied to the $1,000 ; that after that time, and before the 21st of
April, 1849, by fraud of Smith and Clement, the quit-claim deed
was delivered to Clement without his compliance with the fore-
going arrangement, and that the estimate placed upon the 220
acres of land was $1,650 ; that Clement has been in receipt

{a) Lloyd v. Karnes, 45 111. R. 63.

DECEMBER TERM, 1853. 93

Clement et al. v. Evans.

of rents and profits. Prayer of the bill is for reconveyance of
the lands to complainant, and for an account of rents and pro-
fits, taking into account the $77.17 ; and in default of convey-
ance of lands by Clement and wife in twenty days, that master'in
chancery convey the same, and that if balance be against Clem-
ent for rents and profits, complainant have executien, and for
such other and further general and special relief as the develop-
ments of the case shall show to be equitably due.

The decree in this suit was entered by Woodson, Judge, at
September term, 1851, of the Scott Circuit Court.

D. A. Smith, for plaintiffs in error.

M. McCoNNEL and Knapp, for defendant in error.

Caton, J. We agree with the circuit court in the principles
upon which it evidently proceeded to render its decree in this
suit, but think that the most appropriate course was not pur-
sued in granting the relief to which the complainant was in-
debted. Smith had made a contract with Clement for the sale
of the land in question upon certain terms, evidently without
authority from Evans, but relying upon his ability to induce
Evans to sanction and carry it out. Subsequently, Evans did
at least so far approve of the transaction, as to make a quit-
claim deed of the premises to Clement, and deliver it to Smith
as an escrow, with authority to deliver the deed to Clement
upon the performance of certain acts on his part, which it is
now unnecessary to specify. After this, Smith abandoned
Evans' interests, and confederated with Clement to defraud
Evans out of whatever interest he might have in the land.
They at once assumed that he had no interest, and Clement
took a title from another source, while, to make all sure, Smith
delivered the quit-claim deed which he held as an escrow, to
Clement, without the performance of the conditions upon which
alone both parties knew it was to be delivered. This was a
transaction for which no justification was attempted upon the
argument, and from which a court of equity cannot allow
Clement to derive any benefit. So thought the circuit court ;
but instead of simply declaring the deed which had been thus
fraudulently obtained null and void, and restoring Evans to all
which he had lost, or apparently lost, by reason of that fraudu-
lent transaction, the court went further, and required Clement
and wife to convey to Evans all title which they had acquired
in the premises, whether from Evans by means of the fraudu-
lent deed, or from other persons by means of other conveyances.

94 SPRINGFIELD.

Clement et al. v. Evans.

In this we think the court went too far ; all that Evans had a
right to claim was to be restored to what he had lost by the de-
livery of that deed. Although Clement fraudulently obtained
possession of that deed, we cannot deny his right to purchase
from other parties whom he might suppose to have some other
and perhaps a better title than Evans. I£ he did acquire such
title from another source, the decree compels him to transfer
that title to Evans, as well as to restore that to Evans which he
had fraudulently obtained. In this respect, the decree will
have to be modified, so as to avoid the necessity of this con-
veyance, and simply restore Evans by canceling the deed which
he left with Smith, and which Smith improperly delivered to
Clement.

The decree was unquestionably right in restoring Evans to
the possession of the property, and compelling Clement to ac-
count for the rents and profits.

Finally, Clement insists that if he cannot hold the land
under that deed, that the court should now allow him the benefit
of the contract of purchase which he alleges he had made with
Evans and Smith, his agent, by being now allowed to hold the
land upon complying with its terms. It is too late now for him
to ask for a specific performance of contract, after having
evaded and repudiated it, and sought to acquire a title to the
land not only from others, but from Evans himself, not under
the contract, but in direct violation of it, and that too by
fraudulent means. His hands are not clean enough to appear
in this court and ask for a specific performance of a contract
which he has thus outraged and trampled under foot. That
portion of the decree requiring Clement and wife to convey to
Evans must be reversed, and the deed fraudulently obtained
must be annulled, and the balance of the decree must be
afiirmed, and the suit remanded to the circuit court, with direc-
tions to execute the degree as modified ; and each party must
pay his own costs in this writ of error.

Decree ynodifiecL

DECE^IBER TERM, 1853. 95

Lowry et al. v. "Wright et al.

George W. Lowry et al., plaintiffs in error, v. Henry C. Wright
et al., defendants in error,

ERROR TO MORGAN.

An attachment cannot be levied upon an equitable interest in land.

On the 22do£ November, A. D., 1852, the comphiinants Lowry
and Filley, filed a bill against the defendants Wright, Duncan,
and Foster, in which it is alleged that Wright was, on the 31st of
January, 1852, by contract with Duncan, the owner of the legal
or equitable title to lot No. 13 in block 21, in town of Waverley,
in county of Morgan ; on which lot was a house and other im-
provements made by Wright, who was in possession of the
same ; that Lowry and Filley respectively had separate writs of
attachment issued against the property of said Wright on said
day ; that they Avere instantly levied on said lot by sherift' ; that
Lowry obtained a judgment against Wright in said attach-
ment proceeding ; that Filley obtained judgment against Wright
in said attachment proceeding ; that the court ordered said lot
to be sold to satisfy said judgments, and awarded WTits of Jiey^i
facias. The bill alleges in substance that Wright is the owner
of said lot, and prays the court to decree that said lot be sold
together with whatever claim said Duncan and Foster may
have to the same.

On which bill process issued returnable to March term, L853,
of said court, and Avas duly served on Duncan and Foster.

On March 9, 1853, Duncan and Foster filed an answer to
said bill, in which they pray that said bill be dismissed, because
it does not show that the executions on said judgments Avere
levied on said house and lot, or that any execution ever issued
against Wright, and was returned for want of property ; that
said bill is void, because it does not show that Wright had a
legal estate in said property, an equitable interest not being sub-
ject to attachment. Defendants deny that Wright had any
title to said lot at date of levy of said attachment, but assert
that said property belonged to and was in possession of Dun-
can, who shortly after levy sold it to Foster, Avho has since con-
veyed the same. Duncan says that he, being the legal OAvner of
said lot in 1851 (date not positively stated), verbally contracted
the same to Wright, who went into possession and made
improvements ; that some time before these attachments were
levied on said property, Wright informed Duncan of his inabil-

96 SPRINGFIELD.

Lowry et al, v. "Wright et cd.

ity to pay for said property, and proposed surrendering back
the possession to Duncan if Duncan would pay him for im-
provements made on the same, whereupon Duncan did receive
back the property, and paid Wright for his improvements. All
fraud is denied, and proofs required of the same.

To which answer a replication was filed, denying the answers
of defendants.

David A. Smith, for plaintiffs in error.

M. McCoNNEL, for defendants in error.

Caton, J, The only question in this case is, whether an
attachment can, under our statute, be lened upon an equitable
interest in land ? A question somewhat similar to this has
been decided at this term in the case of May v. Baker, ajite. p.
89, It was there decided that an equitable interest in a debt could
not be attached in the hands of a garnishee. As was said in
that case, this is a proceeding not in conformity to the common
law, but is created by statute, and is in derogation of the com-
mon law ; and whatever is done under this proceeding must find
its sanction in the statute, if it is to be sustained. The whole
question, then, depends upon the construction which the statute
will bear. The statute says, the writ shall command the sheriff
"to attach the lands, tenements, goods, chattels, rights, credits,
moneys, and effects of said debtor of every kind," &c. Does
the statute which requires the ''lands and tenements" of the
debtor to be attached, authorize the seizure of lands in which
he has an equitable interest, but to which he has no legal title ?
We think very clearly not. It has been always held that stat-
utes which authorize the lands and tenements of the debtor to
be taken in execution, only subjected those lands and tenements
to which the debtor had a legal title, to the levy and sale, and
do not authorize the sale of the debtor's equitable interest in
lands. The same rule must apply in this case. Our legisla-
ture has seen fit to extend the remedy in case of an execution.
Our statute provides, that an execution may be levied upon the
"lands, tenements, and real estate" of the judgment debtor,
and then declares, "The term 'real estate' in this section shall
be construed to include all interest of the defendant or any per-
son to his use, held or claimed by virtue of any deed, bond,
covenant, or otherwise, for a conveyance, or as mortgagor or as
mortgagee of lands in fee for life or years." This shows what it
was deemed necessary by the legislature to do in order to subject
an equitable interest in lands to sale, upon an execution It was

DECEMBER TERM, 1853. 97

Johnson v. Donnell et al.

correctly understood that without this explanatory clause, nothing
but the defendant's legal title could be sold ; the statute authoriz-
ing an attachment to be levied on land, is very different. In this
statute the words "real estate" are left out altogether, and it is
that designation of estate which is declared to embrace equitable
interests, leaving the terms "lands and tenements," even in that
statute, to be understood as specifying only legal titles. Then
shall they receive a broader signification in the attachment law,
where there is no such explanatory clause, nor any thing to be
found indicating an intention that equitable interests were
designed to be embraced? If it was deemed necessary to insert
that special clause in order to embrace equitable interests in case
of execution, and in view of that, it was inserted, its omission in
the attachment law affords very strong proof that it was not
designed in that harsh and sometimes oppressive proceeding, to
give it so broad a scope. Had they intended to subject equitable
interests in lands to attachment, they would have specially pro-
vided for it. They have not done so, and the presumption, is
that they intended to make a distinction in that respect between
executions and attachments.

We think the circuit court decided properly, and its decree must
be affirmed («).

Decree affirmed.

(a) Contra. — Ante. p. 91, note.

Saml'EL Johnson, plaintiff in error, v. Robert A. Donnell et
al., defendants in error.

ERROR TO CLARK.

While the most usual mode of foreclosing mortgages is by ordering the
mortgaged premises to be sold, yet this is by no means the only mode.

The power of strict foreclosure is frequently exercised, and indeed it is
probably never refused where the interests of both parties manifestly
require it, as is often the case ; except in such a case, it never should
be exercised. Such cases may frequently arise, as where the mort-
gagor is insolvent and the mortgaged premises are not of sufficient
value to pay the debt and costs.

Although the statute regulates the terms of the redemption of mortgaged
lands, sold under decrees for foreclosure, it does not in terms prohibit
strict foreclosures. And the court may well presume that it was not
mere inadvertence on the part of the legislature, that the power to
enter such decrees was not taken away.

98 SPRINGFIELD.

Johnson v. Donnell et al.

In a strict foreclosure, it is not necessary for the decree to specify in
whom the legal title to the land shall be vested . By barring the equity
of redemption, it confirms the title in the mortgagee.

Respondent cannot object to the sufficiency of the complainant's proof,
where the bill has been taken as confessed.

It was not erroneous to allow the sheriff', in the court below, to amend
his return, after he had gone out of office, and after the decree had
been entered.

This cause was decided at April term, 1852, of the Clark
Circuit Court, before Harlan, Judge.

The opinion contains a statement of the case.

Constable and Dulany for plaintiff in error.
Stuart and Edwards, for defendants in error.

Caton, J. This is a bill for the foreclosure of a mortgage,
and sets forth in the usual way the execution of the notes and
mortgage, and the non-payment of the money. In addition to
this, it also avers that the mortgaged premises are not of value
sufficient, and if sold would not pay the amount due on the mort-
gage, and costs, and that the mortgagor has no means of paying
any balance which might remain due after the sale of the mort-
gaged premises, and prays for a strict foreclosure. The bill was
taken for confessed, proofs were heard by the court, and a decree
of strict foreclosure was entered.

It is now insisted, that under our statute the court had no
right to decree a strict foreclosure, but was bound to order the
premises to be sold. The twenty-fourth section of the fifty-
seventh chapter R. S. is relied upon to sustain this position. It
is this : "In all cases hereafter where lands shall be sold under
and by virtue of any decree of a court of equity for the sale of
mortgaged lands, it shall be lawful for the mortgagor of such
lands, his heirs, executors, administrators, or grantees, to redeem
the same in the manner prescribed in this chapter, for the
redemption of lands sold by virtue of executions issued upon
judgments at common law ; and judgment creditors may
redeem lands sold under any such decree, in the same manner as
is prescribed for the redemption of lands, in like manner
sold upon executions issued upon judgments at common law."
While it is admitted that this section does not in terms forbid
the courts to exercise the power which they had been in the con-
stant habit of exercising as a part of their undoubted jurisdic-
tion, by granting decrees of strict foreclosures upon mort-
gages, yet it is argued that such a power is impliedly taken away.

DECEMBER TERM, 1853. 99

Johnson v. Donuell et al.

I certainly have never been able so to understand that statute.
Previous to its passage, the most usual mode of foreclosing
mortgages was by ordering a sale of the mortgaged premises,
at some future time to be fixed by the discretion of the court,
either reserving the right to the mortgagor to redeem from that
sale within a specified time, or making the sale absolute.
When no right of redemption was allowed, the sale was usually
fixed for a distant day, say six months or a year, or the
next term of the court, but in case the decree provided for a
redemption from the sale, the premises were ordered to be sold as
soon as the requisite notice could be given. This statute was
evidently designed to fix a uniform rule for such cases, and to
leave it no longer to the discretion of the courts. The statute
plainly does this, and it professes to do nothing more. While
the most usual mode of foreclosing mortgages was by ordering
the mortgaged premises to be sold, yet this was by no means
the only mode. The power of strict foreclosure was frequently
exercised, and indeed it was probably never refused, where the
interests of both parties manifestly required it, as is often the
case. Except in such a case it never should be exercised, and
in such cases only, I imagine, would this court have sanctioned
it before the passage of the statute above quoted, and it cer-
tainly could not do so now. Such cases, however, may fre-
quently arise. As where the mortgagor is insolvent and the
mortgaged premises are not of sufiicient value to pay the debt
and costs. (a) In such a case it is for the interests of the mort-
gagor that the premises be taken in absolute discharge of the
whole mortgage debt ; for in this country there are but few,
indeed, so desperately insolvent that they do not consider that
their interest is promoted by the discharge of any portion of
their indebtedness. Nor, on the other hand, can it prejudice
their interests to have the land applied without a sale, when the
value of the premises does not exceed the amount of the mort-
gage debt and costs. In such a case, also, the interest of the
mortgagee may be clearly promoted by taking the land in abso-
lute discharge of the debt. While he loses a claim against an
irresponsible party which is practically of no value, begets a clear
title to the premises, if the debt is not paid within the time pre-
scribed by the decree.

Such was the case here. The mortgagor had nothing else to
pay with but this land, which was not of sufiicient value to pay the
debt and costs. This state of facts appears in the complainant's
bill, which prays for a strict foreclosure. The mortgagor did
not dispute these facts, and made no objection to the relief
sought. He did not appear at all, but allowed the bill to be

(a) Wilson et cd. v. Geisler, 19 111. R. 51; Yansant v. Almon, 33 111. R. 33;
Stephens v. Bichnell, 37 111. R. 446, and post. 506.

100 SPKINGFIELD.

Johnson v. ~Don\i.e\\ et cd.

taken as confessed, and it is now too late to object to the truth
of those statements. In support of the allegations of the bill,
the court heard proof. What that proof was, we are not inform-
ed by the record, but we may well presume in favor of the
decree, that the proof was in corroboration of the bill. At
any rate it has been repeatedly decided by this court, that
the respondent cannot object to the sufficiency of the proof,
where the bill has been taken as confessed. This record, then
justifies the conclusion, that it was for the interest of both parties at
the time the decree was rendered, that a strict foreclosure should be
decreed. And so long as such cases might frequently arise, we may
well presume that it was not mere inadvertence on the part of the
legislature, that the power to enter such decrees was not taken
away. This power may possibly be abused by the courts. If
this were a valid argument against the existence of the power, in
order to satisfy it, it would be necessary to deprive the courts of
all power to do justice as well as injustice, for there are very few
powers which are held, either by courts or others, which may not
be abused and perverted. But such an argument is more prop-
erly addressed to the legislatm'e than to the courts themselves.
Before the passage of the law quoted, the power here exercised
did exist, and this statute did not pretend to take it away or
abridge it, and the conclusion necessarily follows that it still
exists. In this case we cannot say that the decree should be
reversed, because it was improperly exercised. It must, therefore,
meet with our approval.

Some other objections were raised to the decree, which have
been examined and found to be untenable. One is that the
decree does not specify in whom the title to the land shall be
vested ; that was not necessary. By barring the equity of re-
demption it confirms the title in the mortgagees ; the title con-
veyed by the mortgage, which was before conditional, now be-
comes absolute. It was also objected, that the decree does not
specify to whom the money should be paid, in default of which
the equity of redemption was foreclosed. The money was decreed
to the complainants who were the mortgagees, and this should
have been satisfactory evidence to the defendant, that the money
was to be paid to them. Had he so paid it, he would have saved
his title.

The sheriff was allowed to amend his return after he had gone
out of office, and after the decree had been entered. The objec-
tion to this is fully answered by the decision of this court in the
case of Morris v. Trustees of Schools, and it is unnecessary
again to discuss the queston here. (a)

The decree of the Circuit Court must be affirmed.

Decree affirmed.

{(I) Post. 270 and notes.

DECEMBER TERM, 1858. 101

May V. Jenkins et nl.

LuivE May, plaintiff in error, v. Robert R. Jenkins ct al.^
defendants in error.

ERROR TO MORGAN.

Jenkins was insolvent ; the father of his wife made an advancement for
her separate use, to be invested in such way that the creditors of the
husband could not reach it ; there was no appearance of fraud in the
transaction -.—IMd, that tlie father oftlie wife had the leo-al and moral
right to make such advancement, and that no complaint could be made
against such action. (<0

The cause was heard before Woodson, Judge, at November
term, 1853, of the Morgan Circuit Court.
The opinion contains a history of the case.

JM. McCoNNEL, for plaintiff in error.

D. A. Smith, for defendants in error.

Caton, J. We think the decree in this case must be affirmed.
It satisfactorily appears, that the lot was purchased in the name
of the trustee, and the house built by him for the use of Mrs.
Jenkins with funds furnished by her father, for her sole and
separate use, and with the express intention and direction that
that they should be so invested. Over four hundred dollars was
raised from the sale of the land in Woodford county, which
had been given to Mrs. Jenkins by her father, and for the pur-
pose of providing for her a separate estate ; and two hundred
dollars in money was also sent out for that purpose. The
money raised from the sale of the land never passed into the
hands of Mr. Jenkins, but was received by the son, who sold
the land- and who held the title in trust, and was by him paid
over to Cooley ; the two huncli'ed dollars which Mrs. Jenkins'
father sent out for her was evidently received by Mr. Jenkins,
but he never assumed to own it or to exercise any control over
it in his own right, but loaned it out as the agent of Cooley, the
trustee, and for the use of his wife. It was eventually paid to
Cooley, or was invested in the house and lot by his direction.
The house and lot cost probably something over one thousand
dollars. The father of Mrs. Jenkins certainly furnished over six
hundred dollars of this, besides accumulated interest, the amount
of which is not shown. There is still owing upon the house
and lot between three and four hundred dollars ; showing means

('0 Hinde's Lessee v. Longworth, 11 Wheaton's U. S. R. 199.
ILL. R. VOL. XV. 8

102 • SPRINGFIELD.

May V. Jenkins et al.

furnished by her father, for the use of Mrs. Jenkins, approxi-
mately sufficient to pay for the house and lot. It is true that a
part of the contracts were made by Mr. Jenkins, but this was
done as the professed agent of Cooley the trustee. And it sat-
isfactorily appears that Cooley paid Jenkins for his work on the
house, the same as other mechanics. We think it is not shown,
that Jenkins has either funds or labor invested in this house or
lot.

The case is simply this : Jenkins was insolvent. In view of
this fact, the father of Mrs. Jenkins makes an advancement for
her separate use, with express directions to have it invested in
such a Avay as to secure a home for his daughter, which should
be beyond the reach of the creditors of her husband. And the
question is, Was that a fraud upon those creditors ? was this a
transaction, either on the part of the wife or her father, of which
the creditors had any right to complain ? We think most
clearly not. Her father had both the legal and the moral right
to do with his own as he pleased ; and if he chose to give it to
his daughter, instead of appropriating it to the payment of her
iusband's debts, he was but exercising a high moral right, of
which no one can have cause to complain ; and the courts
should not be astute in seeking for trivial circumstances to
thwart his intentions, where such intention has been uniform,
and is clearly manifest from his whole course in the transaction.
'To apply this fund now to the payment of the husband's debts,
which was originally and always designed by the donor to
secure a comfortable provision for his daughter, in view of
those very debts which might prevent the husband from making
a suitable or comfortable provision, would be unjust in the ex-
treme. Those debts Avere never contracted upon the credit of
this fund, or with the reasonable expectation that they would
be paid by the father-in-law of the debtor ; and the creditors
ought not to complain, that he chose to provide for his daugh-
ter, rather than pay them and leave her destitute. Where there
is an attempt to cover up the actual property of the debtor,
under the name of the wife, it is the right of the creditors and
the duty of the courts to defeat such intention. W^e are satis-
fied, however, that this is not such a case ; and we are of opin-
ion that the decree should be affirmed.

Decree affir^ned.

DECEMBER TERM, 1853. 103

Baker v. Copenbarger et al.

Martin E. Baker, plaintiff in error, v. Mahala Copenbaroer
ef al., defendants in error.

EKROR TO SANGAMON.

A devise of real estate, which by the provisions of tlie will is to be
converted into mouej^ and that money distributed among the devisees,
nuist be treated as a devise of money and not of land.

Devisees may elect to take the land itself instead of the money ; but
the character of the devise cannot be changed from money to land
without the concurrence of all the devisees.

In such case, one devisee cannot sell or convey a valid title to any
part of the land; nor can the interests of one of the devisees be sold on
execution.

It is competent for a feme covert to elect to take the land instead of the
money ; but that election can only be made under the same forms and
solemnities as by law are required to enable her to convey her fee.

A purchaser at sheriff's sale of the interest of one of the devisees in
such case is not entitled to receive that portion of the money produced
by the sale of the land to which the devisee was entitled under the
will. The devisee, in such case, has no interest in the land, which can
be levied upon under execution.

A naked legal title, which is held in trust, cannot he sold on execution at
law. So of an equitable title, which is only contingent and uncertain.

This suit was heard before Davis, Judge, at NovenTber term,
1853, of the Sangamon Circuit Court. See statement of case
in the opinion of the court.

J. C. CoNKLiNG, for plaintiff in error.

Stuart & Edwards, and S. T. Logan, for defendants in error.

Caton, J. By his last will and testament, James Newell de-
vised the premises in question to his wife for life ; then the will
proceeds : "And that at the death of my said wife, all the prop-
erty hereby devised or bequeathed to her as aforesaid, or so
much thereof as may remain unexpended, be sold, and equally
divided among my children, Martha Copenbarger," and four
others, naming them.

Conveyances were made by several of the devisees to Wil-
liam D. Newell, one of the devisees, of their interest in the
premises, to which objections were made, but which with the
view we take of this case, it is unnecessary to examine. Although
there was some attempt made by the testimony of Hooper to
show that Mrs. Copenbarger had at one time agreed to sell her
.interest in the premises to William D. Newell, yet there is not

104 SPRINGFIELD.

Baker v. Copenbarger et al.

a pretense for saying, that she ever made a valid conveyance
for that purpose. Hooper swears that he did, during the life-
time of her husband, draw up an agreement by which she
agreed to sell her interest to William for two hundred dollars,
which was to be paid in eight years, and if not promptly paid
at that time, all claim under the agreement, and all payments
were to be forfeited, and the witness thinks this agreement was
signed by Mrs. Copenbarger and her husband, and left in the
hands of old Mrs. Newell, but that the agreement was never
acknowledged. Without an acknowledgment she could make no
valid conveyance of her estate, and hence it is unnecessary
to inquire whether he ever made payment according to the
terms of the agreement. There was certainly no legal conveyance
by Mrs. Copeland to her brother William.

Here was a devise of real estate, which, by the provisions of
the will, was to be converted into money, and that money dis-
tributed among the devisees. This, it is admitted on all hands,
must be treated as a devise of money and not of land. This
rule is so well settled, that it is not necessary even to refer to
the authorities on the subject. The legal title to the land is
held in trust for the purposes specified in the will, whether the
title is left by the will to descend to the heirs by operation of
law, or whether by the will it is vested in a trustee ; nor does
it make" any difference in this respect, that the legal title
descended to the devisees to whom the bequest is to be
paid in money when the land is sold. There can be no
doubt, however, where a devise is made of money to be pro-
duced by the sale of land, as in this case, that by the election of
all. the devisees, they may take the land itself instead of the
money, where all are competent to make such election ; but it
is equally clear, that the character of the devise cannot be thus
changed from money to land except by the concurrent action of
all the devisees, for as each has a separate right to insist upon
the bequest as provided by the will, their claim cannot be de-
feated except upon the election of all, hence each must have the
uncontrolled right to have the land sold and to receive his share
of the proceeds of the sale of the land. If four of the five de-
visees could elect to take the bequest in land instead of money,
they could, without the consent of the fifth, compel her to take
an undivided fifth share of the land instead of a fifth part of
the money, for which the whole land would sell. The fifth,
therefore, has the right to insist that the land shall be sold, and
that, too, unincumbered and unembarrassed by any act done or
suffered by any of the other devisees. If one of the devisees
could sell his interest in the land, and convey a valid title to his

DECEMBER TERM, 1853. 105

Baker v. Copenbarger et al.

fifth, and another could suffer an execution to be levied upon
his undivided fifth, and sold and a good title conveyed to the
purchaser, it is manifest that the title would become so embar-
rassed as to prejudice the interests of the other devisees ; for the
sale must be of an interest in the land, and not of money to be
produced from the land. If they have a right to insist upon a
sale, there can be no doubt that they have a right to have as
perfect a title conveyed under that sale, as descended from, or
was devised by, the testator. It is competent for a Jeme covert
to elect to take the land instead of the money, but that election
can only be made under the same forms and solemnities as by law
are required to enable her to convey her fee. Oldham v. Hughs,
2 Atk. 452 ; May v. Roper, 4 Sim. 860 ; Jarman on Wills, 538 ;
Rice V. Baxter, 1 Watts & Serg. 455. There is no pretense that
this was done by Mrs. Copenbarger ; hence she has the undoubted
right to have the land sold and her proportion of the proceeds
paid to her.

The question, however, will still arise, whether the purchaser
at the sheriff's sale will be entitled to receive that portion of
the money which by the will is devised to William Newell.
This depends entirely upon the question whether he had any
interest in the land which was subject to be levied upon under
the execution. If the plaintiff in the execution had a right to
levy upon the land, he had a right to sell it, and to convey a good
title in spite of the other devisees. This we have already seen he
could not do. The reason of this is obvious. A portion of the
legal title had descended to and vested in him, not as owner but
as trustee, to be sold and the proceeds distributed according to the
directions of the will, and that title was held as strictly in trust as
if he was to have no interest in the proceeds. The land was not
devised to him, but the money was. His only claim of interest
was in that money, and even in that he had no certain interest till
after the death of his mother, who, by the will, was author-
ized to sell it. ' The naked legal title, then, which he thus held in
trust, certainly could not be sold on execution at law. Could his
equitable title ? That was derived solely from the will. By the
will he derived no title to the land, either legal or equitable. The
devise, as before suggested, was not of the land, but of money.
The bequest was of money, not presently, but in expectancy, and
•even then not certain, but contingent upon his mother dying without
disposing of the land. Till that event happened, he had no certain
interest either in the lands or its proceeds. After that event, he had
an expectancy of money, but nothing more. There was even yet no
money due him under the will, nor could it become due till it had been
;produced by a sale of the land. Till then he could have no right to

106 SPRINGFIELD.

Sibert v. McAvoy.

demand it of any one. The question then simply is, can an execution
be levied, not upon money present, nor even upon money presently^
due and payable, but upon a hope or probability that money may,
upon the happening of some future event, become due and paya-
ble to the defendant in the execution ? The very statement of the
proposition conveys to every legal mind the most conclusive an-
swer. We are of opinion that the sale under the execution con-
veyed no title whatever, either in the land or its proceeds, as to
any of the devisees, and the decree of the circuit court must be
affirmed.(a)

Decree affirmed.

(rt) Jennings v. Smith, 29 111. E. 122 ; Rankin et al. v. Rankin, 30 111. R.
299.

Gideon Sibert, plaintiff in error, v. Daniel McAvoy,
defendant in error.

ERROR TO MORGAN.

A verdict upon an issne out of chancery, does not necessarily consti-
tute the basis of the adjudication in the suit.

If a party desires to have a mistake in a contract corrected, he must
resort to equity for that purpose, before he submits the contract to a
court for adjudication.

Contracts can only be reformed for mistakes of fact.

In this case the parties entered into a written contract about
ditching to be done by Mcxlvoy for Sibert and others.

McAvoy did the work as the parties directed, and upon the
settlement for the work, Sibert refused to pay according to the
measurement contended for by McAvoy, and he sued in a court
of law for his work.

A difficulty arose upon the trial as to the construction of the
contract, and the jury disagreed, and there was a mistrial, and the
attorneys for the parties made an agreed case, to test this point ;
upon Avhich p7^o jorina judgment was rendered in the circuit
court, and the case went to the supreme court, and \he pro forma
judgment was there affirmed. The question make and decided in
this case, was as to the construction of the contract as it was
written.

McAvoy then filed a bill in chancery alleging that the contract,
really between the parties was different from the manner in
which it had been written, and alleged that there was a mistake
in drawing up the contract made by the person employed to

DECEMBER TERM, 1853. 107

Sibert v. ]McAvoy.

wi'ite it, and that the other party fraudulently took advantage
of said mistake on the trial at laAV.

McAvoy set out in his bill those proceedings at law, and
alleged, that this mistake in writing the contract, was never dis-
covered by him until the trial of the suit at law.

The bill prayed that an issue might be made out of chancery
and tried by a jury, to determine whether the mistake alleged did
occur, and to determine what the contract really was
between the parties, and which they intended to have reduced
to writing.

The defendants, Sibert and others, answered and denied the
making of the mistake, and contended for the contract as it was
Avritten, and also set up the agreed case, and the judgment at law
as an estoppel to the relief asked in this bill.

The circuit court ordered the issue to be tried by the jury as
by the bill asked, and said trial was had, and the court of law,
upon the motion of both parties, gave instructions, and the jury
found the issues for McAvoy, and found the contract to be as
alleged by him, and the error in drawing it up.

This verdict was certified to the court of chancery, and said
verdict and instructions of both parties, and said agreed case
and judgment at law, and all the proofs on both sides establishing
the amount due and the sums paid were given in evidence, and
the court entered a decree for McAvoy for the balance due him
as prayed in his bill.

Sibert and others brino; this case to this court to reverse this
decree.

This cause was heard before Woodson, Judge, at March term,
1853, of Morgan Circuit Court.

D. A. Smith and W. Brown, for plaintiff in error.
M. McCoNNEL, for defendant in error.

Caton, J. In November 1851, a contract was entered into
by Sibert and others of the one part, and McAvoy of the otlier
part, by which McAvoy was to dig a certain ditch, for which
Sibert and others were to pay him twelve and one-half cents
per yard, the measurement to be made by David Hodges. Pay-
ments were made as the work progressed. After the work was
completed it was measured by Hodges. McAvoy was dissatis-
fied with the rule of measurement adopted by Hodges. He
then brought a suit at law upon the contract, upon which an
agreed case was made up, in which it was agreed, that under
the contract declared upon, McAvoy had dug the ditch of cer-

108 SPRINGFIELD.

Sibert v. McAvoy,

tain specified dimensions, the actual excavation of -n-hich was
3,0084 cubic yards as Hodges had measured it, but when
measured by another engineer, according to a rule laid down in
the contract as he construed it, and which gave more than the
actual amount of the work, the measurement amounted to
6,125 cubic yards. In that case the court adopted Hodges'
measurement, and allowed the plaintiff for the amount of work
actually done, at the price agreed upon, and rendered judgment
for the defendants who had overpaid the plaintiff according to
that measurement. That case was brought to this court, where
the same construction was given to the contract, and the judg-
ment was affirmed. This bill was then filed by McAvoy, alleging
a mistake in drawing up the contract, praying the court to correct
the mistake, and decree to the complainant the additional com-
pensation to which he would be entitled under the contract as
amended. Issues were formed and tried by a jury, who found
for the complainant, whereupon a decree was entered adjudging
to the complainant $390.22 and interest, amounting to the sum
of $66.30. To reverse this decree the suit is brought to this
court.

The record does not present the evidence upon which the jury
found their verdict, as it should have done. A verdict upon an
issue out of chancery does not necessarily constitute the basis
of the adjudication in the suit, as is the case at common law.
It is not conclusive of the facts thus found, but the court may,
notwithstanding the verdict, find the facts the other way, upon
an examination of the evidence in the case, and render a decree
accordingly. (a) Or the court may adopt a part of the facts as
found by the verdict, and upon other points arrive at a different
conclusion. And the same course may be taken by this court
when the record is brought here, (jarrett v. Stevenson, 3 Gilm.
278. Hence the necessity of sending up the whole evidence in a
chancery suit, when any question is to be made as to the
facts.

But waiving all this, we think the complainant has come too
late with his bill to correct a mistake in this contract. He
brought an action upon that contract, which he prosecuted to
final judgment, not only in the circuit court, but in this court
also. He declared upon the contract as it was written, and in
the agreed case admitted, that the work was done under that
contract, as declared upon in that action. There was a dispute
about the construction of the contract, but none about its terms.
He contended then with his witness, that the written contract
provided the same rnle for the measurement of the work which
he now insists was the actual agreement of the parties, but

(«) Williams v. Bishop, post. 555 ; Waddams v. Humphrey, 22 III. R.
663-4 ; Brockett v. Brockett, 3 How. U. S. R. 692.

DECEMBER TERM, 1853. 109

Sibert v. McAvoy.

which he now says was left out of the agreement by mistake in
drawing it up. In the construction of that agreement the court
disagreed with him, and rendered judgment against him upon the
contract. The contract then was merged in the judgment, and
as a contract, ceased to exist. The trial was upon the entire con-
tract, and left no part of it open to future controversy or adjudi-
cation. There is, then, no contract left between the parties, to
be reformed and corrected. If there was a mistake in drawing
up the contract the party should have had it corrected before he
called upon, or, at least, before he finally submitted it to a court
for its adjudication. He had no right, first, to go to the court of
law and there try the experiment to see whether he could not get
such a construction adopted as would make it embrace all that he
contended for, as constituting the agreement of the parties, and fail-
ing in that, go into equity to get that inserted in the contract which
he insisted was in it before. (a) If he misconstrued the contract as
written, that was a mistake of law and not of fact, and for such
mistakes equity can grant no relief. It is where parties in-
tended to insert words in a contract which were by accident
omitted, that equity can reform the contract by inserting them or
by expunging words they did not intend to have inserted. If the
words are written as the parties intended they should be written,
or supposed they were written, when they signed the contract, no
matter how much they may be mistaken as to the meaning of those
words, no relief can be granted either at law or in equity. The
construction of wordo is a matter of law. The insertion of words
is a matter of fact. It is for mistakes of fact alone that con-
tracts may be reformed.(6)

But whether this was a mistake of fact or of law we are very
clearly of opinion that the complainant comes too late to have the
mistake corrected and the corrected contract enforced. It had
already been enforced, and that was the end of it.

The decree of the circuit court must be reversed and the bill
dismissed.

Decree reversed.

(rt) Ruffner v. McConnell, 17 111. R, 217.

{b) Broadwell ®. Broadwell, 1 Gil. R. 608 ; Hunter, adm'r v. Bilyen, 30
111. R. 248 ; Mills et al. v. Lockwood, 43 111. R. 117 ; McCloskey v McCor-
mick, 44 111. R. 330 ; Stover v. Mitchel, 45 111. R. 215 ; Wood v. Price, 46
lb. 439.

110 SPRINGFIELD.

The People, ex rel. Stevenson ij. Higgins.

The People, ex relatione Fleming Stevenson, plaintifl" in
error, v. James M. Higgins, defendant in error.

ERROR TO MORGAN.

It is as essential to an information tliat a proper venue be laid, as to an
indictment or declaration.

The act creating the "Illinois State Hospital for the Insane," incorporated
certain individuals named, and their successors in office, as trustees,
and constituted them a body politic and corporate ; it also created
the office of medical superintendent of said institution, and provided
that the trustees should have charge of the general interests of the in-
stitution ; that they should appoint the superintendent, assistant
phj'sician, and steward, and fix the amount of their salaries ; that the
superintendent should be a skilful physician, and be appointed for the
term often years ; and that he should be subject to removal only for
infidelitj^ to the trust reposed in him, or on account of incompetenc.y.

Held, that the trustees had the right to remove the superintendent fbr
the causes specified, whenever either of those causes existed.

Had the law been silent as to the tenure of the office, and on the subject
of removal, the court would not hesitate to hold that the power of
amotion was incidental to that of appointment, and that the trustees
might remove the superintendent without assigning any specific cause,
whenever in their judgment the best interests of the institution should
require it.

In cases of this sort, where the law is silent as to the mode of proceed-
ing, reference must be had to the nature of the case, to determine what
course justice requires the removing power to pursue in exercising
its jurisdiction.

It was not necessary that the cause assigned for removal should be stated
in the precise language of the statute ; if it substantially embraced it,
that was sufficient.

These proceedings in the court Ijelow were had at October
term, 1853, of the Morgan Circuit Court, Woodson, Judge, pre-
siding.

The facts will be found stated in the opinion of the court.

Stuart & Edwards, and W. Broavn, for plaintiffs in error.

D. A. Smith and M. McConnel, for defendant in error.

Caton, J. This information contains five counts. The second
and third were dismissed by the State's attorne3^ To the first,
fourth and fifth a several demurrer was filed, which was sustained
by the circuit court, and to reverse this decision the case is brought
here. The first count was bad for the want of a proper venue.
It does not state in what county the offense was com-
mitted. It is as essential to an information that a

DECEMBER TERM, 1853. Ill

The PeoiDle, ex rel. Stevenson v. Higgins.

proper venue be laid, as to a declaration or an indictment. By
the fifth count but one question is presented, and that is,
whether the trustees had the right to remove the superintendent
for one of the grounds specified in the statute, to-wit, for infi-
delity to the trust reposed in him, or incompetency to the dis-
charge thereof ? The fourth count presents the additional ques-
tions, whether he was removed for one of the reasons specified in
the statute, and Avhether he was entitled to notice of the pro-
ceeding before the order for his removal was made, and whether
the board proceeded properly in making the order.

The fifth count avers that at a meeting of the board of trus-
tees, held on the 6tli of June, 1853, the defendant was, by said
trustees, removed from said ofiice of medical superintendent of
the hospital " on the ground and for the reason of his incom-
petency to the discharge of the duties thereof, and that at the
time the order for said removal of said Higgins was made, he,
the said Higgins, was present before the said board of trustees,
and before the passage of the resolution as aforesaid was heard
by said trustees in his defense, and then interposed no objec-
tion to the consideration of the question of said removal at that
time, and did not ask or express any desire for the postpone-
ment of said resolution." These averments leave nothing open
for consideration as to the regularity of the proceeding, save
only the question of power.

The Illinois State hospital for the insane was founded by the
State, and is supported by its funds. The act creating the cor-
poration incorporates certain individuals who are named as
trustees, and their successors, a body politic and corporate. It
creates the office of medical superintendent of said institution,
and provides that the trustees " shall have charge of the gen-
eral interests of the institution ; they shall appoint the super-
intendent, assistant physician, and steward, and shall fix the
amount of their salaries. The superintendent shall be a skillful
physician, and shall be appointed for a term of ten years, during
which time his salary shall not be reduced; he shall be s,ub-
ject to removal only for infidelity to the trust reposed in hina, or
incompetency to the discharge thereof ; he shall be a married
man, and with his family reside in the institution." The ques-
tion is, upon Avhom is this right of removal for the specified
causes conferred? The act does not say in express terms by
whom it shall be exercised. By the defendant it is contended,
that it can only be exercised by the legislature in their legis-
lative capacity, or by the governor, the members of the legis-
lature, and the members of this court, as visitors of the institu-
tion. We think it was conferred upon, and was designed to

112 SPRINGFIELD.

The People, exrel. Stevenson v. Higgius.

be exercised bj the board of trustees. We think it very clear,
that the power here conferred upon somebody could have had
no reference to the power of amotion as inherently residing in
the legislature ; for with or without that law they possess the
power, in their legislative capacity, to remove the superinten-
dent for any cause whatever, or even without cause, and the
limitation of the right to remove for the two specified causes
only, must have had reference to the power of amotion to be
exercised by some other authority created by the act, in which
the limitation is expressed. The last section of the act declares
that "the governor, the judges of the supreme court, and mem-
bers of the legislature shall be, ex officio, visitors of the insti-
tion." Admitting that the term visitors, as here used, is de-
signed to be uaderstood in its technical sense, and it is mani-
fest that it was not designed to vest in the visitors all the
powers incident to that ofiice, when it is created by general
terms or exists without restriction in eleesmosynary institutions.
The original and essential power of visitation is, by the express
provision of the statute, vested in the trustees ; they are author-
ized to make by-laws, rules, and regulations for the government
of the institution, and its general interests are given them in
charge ; they are authorized to appoint its principal officers and
to fix their salaries, and, in fine, are vested with the essential
original powers of visitors. We cannot believe that thevisitorial
powers thus expressly vested in the board of trustees, Avere in-
tended also to be vested in another and distinct body of men,
under the general term visitors. It was the design of the legis-
lature to confer upon the board of trustees the management of
this institution, and to confer upon them all necessary powers
for that management and control, as the most probable way of
accomplishing, in the highest degree, the great and benevolent
purposes of its creation ; and we have no doubt it was the clear
intention of the legislature that they should have the power of
removing the superintendent as well as appointing him, and
otherwise properly managing the institution. But this power
of removal was limited. For two causes only could it be exer-
cised. Except for these causes the superintendent was placed
even beyond the power of the trustees duriug the term for which
he should be appointed. No change of political parties, or
other inferior consideration, could ever disturb him in his high
and responsible position. Infidelity or incompetency alone
should authorize his removal. When these causes should be
found to exist, the highest interests of the institution and its
inmates must peremptorily require the prompt and energetic
exercise of this power. It could not be compatible with those

DECEMBER TERM, 1853. 113

The People, ex rel. Stevenson v. Higgins.

interests, that action should be delayed till the assembling of
the legislature, or till its members, with the governor and judges,
could be got together from the different parts of the State, as a
board of visitors, and do that which should be done promptly
whenever either of the causes should exist. The trustees were
vested with the general control and management of the affairs
and interests of the institution ; they were authorized to appoint
the superintendent, who might be removed for the specific
causes, and they were the appropriate body when either of
those causes should exist, to make that removal. Had the law
been silent as to the tenure of the office, and on the subject of
removal, we should not hesitate to hold that the power of
amotion was incidental to that of appointment, and that they
might remove him without assigning any specific cause
whenever in their judgment the best interests of the institution
should require it. Admitting the 17th section created a board of
visitors in the technical sense of the term, and still their jurisdic-
tion to remove was not original, but appellate. The only possi-
ble way in which they could interfere in the matter would be by
entertaining an appeal from the decision of the trustees, and I
do not believe that the legislature intended to organize such a
tribunal by the seventeenth section ; but that we need not
decide. Admitting the power of the trustees to remove the super-
intendent, and the questions still remain, whether they proceeded
in a legal manner to make the removal, and whether the removal
was made for a legal cause. As to the mode of preceding, it
was insisted that specific and formal charges should have been
preferred against the superintendent ; that he should have had
a formal notice of the time and place of the trial of those
charges ; that a regular trial should have been had upon
the testimony of witnesses, and even that he was entitled to a
trial by jury. The statute has made none of these formalities
necessary, nor does the common law so interpose and attach itself
to the statute as to require them. In support of the position as
asserted for the defendant, the case of The Commonwealth v.
Barry, Hardin, 229, was referred to. There the constitution had
vested in the court of appeals the jurisdiction to remove clerks of
the circuit courts for official misconduct, and- upon a complaint
made to that court of official misconduct of a clerk of a
circuit court, the court of appeals directed the attorney-general to
file specific charges against the clerk, which should be served
upon him by copy, with a notice to him to appear and defend,
and upon those charges a trial was had before the court upon
testimony. While the circumstances of the case rendered such
formal proceedings eminently proper, there is not a Avord in the

114 SPRINGFIELD.

The People, e.v rel. Stevenson v. Higgins.

case intimating that that course Avas adopted in obedience to
any settled practice applicable to cases of a similar kind,
or even in conformity to a single precedent. The most that can
be said of the case is, that there the court deemed such a
course right and just, and having the right to establish such a
mode of proceeding as was deemed right, that mode of proceed-
ing was required. Had the defendant been their own clerk, and
the causes for .removal established by their own observation,
there is no intimation that such formal proceedings would have
been required, or any such trial had.' In cases of this sort,
where the laAV is silent as to the mode of proceeding, reference
must be had to the nature of the case, to determine what course
justice requires the amoving power to pursue in exercising their
jurisdiction. Here the trustees were charged with the general
management of the institution, and were authorized to appoint a
superintendent possessed of certain qualifications ; and for the
want of certain of those qualifications they might remove him.
They are not bound down by any legal rule of evidence, when
dexermining as to the existence of those qualifications for
the purpose of making the appointment ; nor, on the other hand,
are they thus restricted when determining upon the absence or
want of certain qualifications, when acting upon the question of
removal ; they may determine that question upon their own
observation, and exercising their own best judgment, as well
as upon facts detailed by others, or upon the opinions of witnesses.
Indeed, they could scarcely have more certain or satisfactory
guides, upon which to determine as to the want of proper
and necessary qualifications, than their own observation of the
manner in which the institution was managed and conducted by
the superintendent. None could have greater facilities for
correct observation than themselves ; and from their position,
they must be presumed to be capable of forming correct opin-
ions upon such observations. Suppose upon their visitations they
should find the affairs of the institution badly managed, the
discipline and treatment of the patients outrageous and
abusive, and all things going on manifestly wrong, may they not
from this judge that the superintendent does not possess those
qualifications which are requisite for the place which he occu-
pies ? When we consider the class of patients under his charge,
and their helpless condition, we might imagine the most aggra-
vated cases of misconduct of the superintendent, possibly falling
under the immediate observation of the trustees, evincing an utter
want of both moral and mental qualifications for the high and
confidential trust reposed in him ; and in such a case as that, have
they not the power to remove him at once from the place he occupies?

DECEMBER TERM, 1853. 115

The People, cx rel. Stevenson v. Higgins.

In such a case shall their hands be stayed till formal charges
are presented, till a notice to appear and defend against those
charges has been served, and a protracted trial had, for the pur-
pose of proving, by the testimony of witnesses, facts which they
already know by their own observation, and in the mean time
the same abuses continue before their faces ? Such a pro-
ceeding, instead of promoting the ends of justice and the objects
of the law, would be but a mockery of the one and an abuse
of the other. As we understand this law, these trustees are
charged with the responsibility of providing a suitable superin-
tendent for the institution. When the appointment is once
made, they are not at liberty to remove him from mere caprice
or partiality, but only for infidelity to the trust reposed in him,
or for the want of the necessary qualifications to the discharge
of the duties of that trust ; they are charged with the responsi-
bility of deciding these questions, and of acting upon that deci-
sion. Circumstances may require, and even the very existence
of the institution, for any beneficial purpose, may demand the
most prompt and energetic action on the part of the trustees in
the removal of the superintendent, and the law did not design
to leave them powerless to act in such an emergency. If they
do act, they must act under the responsibility imposed upon
them by the law ; but under that responsibility it was necessary
that they should have authority to act. \yhat endowments
were necessary to constitute requisite qualifications must be
always matter of opinion, and upon that question the law has
■clearly made it their duty to pass in the first place, in making
the selection, and the law supposes them competent to pass upon
that question ; and upon that they must necessarily form an opin-
ion from the best lights which they can get, and to enable them
to do that understandingly and justly, it was not required that
they should swear witnesses. If the trustees were supposed to be
qualified to pass upon the question of qualification, so as to do
justice to the institution as well as to applicants in making the
appointment, so also they must be presumed to be capable to pass
upon the same question when it arises in relation to a removal.
And in the latter case, they must be manifestly better qualified
to judge than in the former ; for their connection with and rela-
tion to the institution, with their means of observation, must ena-
ble them to form an opinion more understandingly than in the
first instance ; and that, too, without the examination of witnesses.
This they may do, if they choose, in either case ; but we are well
satisfied they are not bound to do so. They may act upon their
own judgment and their own observation ; and whenever they are
prepared to take the responsibility of saying that , the incumbent

116 SPRINGFIELD.

The People, e.v rel. Stevenson v. Higgins.

does not possess the necessary qualifications for the office, they
have the right, and it is their duty to remove him for such cause.
If it be said that they maybe influenced by their prejudices in the
formation of this opinion, and thereby do great injustice to the
incumbent, an objection is raised which is alike applicable to all
human tribunals. Confidence must be reposed somewhere, and
the power to act must be vested in somebody ; and whoever
this might be, whether the trustees, a jury, or the courts, in
either case the objection still remains. It may be presumed to
be as safe with the trustees as with any body. It may be said,
that so long as they are made the sole judges of the existence
of the causes for which they may remove the officer, and the
specification of those causes, there ceases to be any restraint
upon them ; for if they choose to remove the officer from mere
caprice, they have but to state that it is for one of those causes
which they find to exist. This is assuming that they are not
only prejudiced but corrupt, for it would be scarcely less than
this for them in fact to remove the officer for an insufficient cause,
but for the purpose of legalizing the act, untruly assign a legal
cause for the removal. This objection is of the same character
with the former, and might possibly exist in relation to any trib-
unal which might have been instituted.

The question still remains, whether the fourth plea, which sets
out the proceedings of the board of trustees, shows that they did
remove him for one of the causes specified in the charter.
At a meeting of the board held on the 14th of April, 1853, a
resolution was passed, which, after reciting the existence of
sundry differences and difficulties, proceeds : " And whereas
this board, after mature reflection, and acting without regard
to men, but solely with a view to the good of the institution, are
fully convinced that the said medical superintendent does not pos-
sess the kind of qualifications which are necessary to the discharge
of the duties of said office, and that the harmony, good manage-
ment, usefulness, and prosperity of the institution demand a
change in said office of medical superintendent, and without such
a change the hearty co-operation of the community in which said
institution is situated, cannot be attained in promoting its use-
fulness : therefore, be it resolved, that the board will, at the ear-
liest practicable period, consistent with the interests of the
institution, procure the services of another medical superinten-
dent, who, in the estimation of the board, shall be qualified to
discharge the duties of said office." At a subsequent meeting,
on the 6th of June following, the board, in a preamble, referred
to the resolutions passed on the 14th of April, and the reasons

DECEMBER TERM, 1853. 117

The People, ex rel. Stevenson v. Higgins.

therein stated, wliicli required the removal of the superintendent;
and "Resolved, that James M. Higgins, medical superintendent
of the Illinois State hospital for the insane, be, and hereby is,
removed from said office." As the preamble refers to the causes
stated in the first resolution for the removal now made, we have
to look to that resolution to see whether he was removed for one
of the causes for which the statute authorized them to make the
removal. The statute says, " He shall be subject to removal only
for infidelity to the trust reposed in him, or incompetency to the
discharge thereof." The reason assigned for the removal is
" that the said medical superintendent does not possess the kind
of qualifications which are necessary to the discharge of the duties
of said office." Unless the board were bound to adopt the pre-
cise language of the statute, it cannot well be denied that the
cause assigned for the removal was sufficient ; the substance is
the same, though, perhaps, expressed in more delicate or less
offensive terms. If he did not possess the kind of qualifications
necessary to the discharge of the duties of his office then he was
incompetent to the discharge of the duties thereof in a proper
and a profitable manner. The duties of that office must be vastly
varied and extend even far beyond a thorough knowledge of the
science of medicine and of the diseases of the human intellect
and the proper mode of treating them. Beside these, a sound
judgment, urbanity of manners, amiability of disposition and
proper temper maybe equally indispensable to render him compe-
tent to the proper discharge of the duties of that office. Xo
matter what his qualifications may be, if they are not of the kind
which are necessary to the discharge of those duties then he is not
competent to their discharge. Competency includes every neces-
sary qualification. It was not necessary that the cause assigned
for removal should be stated in the precise language of the stat-
ute. If it substantially embraced it, that was sufficient. Sucli
was the case here, and we are of opinion that the fourth plea
shows a removal in a legal mode and for a sufficient reason, and
ihat the decision of the board of trustees is conclusive upon that
point.

The judgment of the circuit court must be reversed and the
cause remanded.

Judi^mcnt reversed.

ILL. R. VOL. XV.

118 SPRINGFIELD.

Noakes v. Martin.

Alanson Noakes, appellant, v. Stephen W. Martin, appellee.
APPEAL FROM BROWN.

Where two parties claim land under the same grantor, the deeds to
whom were recorded prior to the passage of the act of December 30,
1822, but were not so acknowledged as to entitle them to record: — Held,
that both deeds were simultaneously recorded, and that the respective
parties continued as they had previously existed, and that the oldest
deed had the preference.(a)

This was ejectment, brought by Martin against Noakes.
Jury waived, and trial by the court.
Plaintiff gave in evidence, —

1. Patent from United States to Philip W. Hackett, dated
January 3, 1818.

2. Deed from Hackett to plaintiff, bearing date December
15, 1818, and recorded February 1, 1820, in Madison county.

Possession by the defendant was admitted.
Defendant gave in evidence, —

1. Patent from United States to Philip W. Hackett, dated
January 3, 1818.

2. Deed from Hackett to Romulus Riggs, dated April 22,
1818, and recorded December 30, 1821, in Pike county.

It was admitted by the counsel on both sides that neither of
the foregoing deeds Avas acknowledged in conformity Avith the
laws of Illinois in force at the date of such acknowledgment,
but that both deeds were executed and acknowledged in con-
formity with the laws of Massachusetts in force at the date of
said deeds ; both of said deeds having been executed in Massa-
chusetts.

It was further admitted that three years before the commence-
ment of the suit, that is in the year 1849, the defendant took
possession of the premises under a contract of purchase from
said Romulus Riggs, and has held possession under Riggs ever
^ince.

It was further admitted that said premises had always been
vacant until possession was taken under Riggs, and that all the
taxes levied on the land since 1825 had been paid by Riggs and'
Martin, each party having paid all the taxes during each year,
and producing receipts for the same from 1825 to 1852.

The court, Walker, Judge, presiding, at October term, 1853,

(«) Deininger et al. v. McConnel, 41 111. R. 231.

DECEMBER TERM, 1853. 119

Noakes v. Martin.

•of Brown Circuit Court, found the issues for the plaintiff below,
Martin, and awarded him a writ of possession. Noakes
appealed.

Williams and Lawrence, for appellant.
J. Grimsiiaw and Bailey, for appellee.

Caton, J. Both parties claimed under Hackett, as their origi-
nal grantor. The deed under which the appellant claims, is the
oldest in date. The junior deed was first placed upon record,
and both were recorded prior to the passage of the act of
December 30, 1822, but neither were properly acknowledged so
as to entitle them to be recorded. Up to the time of the pas-
sage of that act, the registry of both deeds was void, and
neither could claim any benefit from it. The title of neither
was any better than as if his deed had never been copied into
the registry books. At that time the rights of the parties
depended in no respect upon the registry of the deeds, or the
registry laws, but upon their deeds alone as common law con-
veyances. At that time there can be no doubt that the grantee,
in -the first deed, held the title, and must then have prevailed in
an action of ejectment. That is a proposition too plain to admit
of discussion, or to require authorities for its support.

The question then arises, whether the rights of the parties
were changed by the passage of the act of 1822. The second
section of that act, declared that deeds theretofore acknowl-
edged conformably to the laws of' the State where they were
executed — as both these deeds were — and which had been
recorded, should be deemed properly executed and recorded.
The efiect of that statute was simple to validate the registry of
both these deeds from that time. In contemplation of law,
both deeds were, at the passage of the act, simultaneously
recorded. Before they were not recorded; Then they were.
Neither could claim a priority of record. As neither could
claim any advantage from this legislative registry, because
neither could claim a priority of registry, the rights of the
respective parties continued as they had previously existed. At
the passage of that law, the grantee in the first deed held the
legal title as against the grantee in the subsequent deed, and the
legislature did not, nor did they design, even admitting their
power so to do, to take the title from one and give it to another.
They designed not to change or affect existing rights, but those
which might be subsequently acquired. They designed to
make valid titles which had been previously acquired under

120 SPRINGFIELD.

Birkby v. Birkby et al.

deeds which had been defectively acknowledged and recorded,
as against deeds which might thereafter be executed and
recorded. This they had an undoubted right to do, and they
might have accomplished the same object by repealing all of
the registry laws, when the effect of all deeds would have been
left to the common law for their operation ; and the oldest must
have had the preference, except where rights had been acquired
under the registry laws. We are of opinion the court erred in
finding the issue for the plaintiff below, and for that reason the
judgment must be reversed, and the cause remanded.

Judgment reversed.

Ann Birkby, plaintiff in error, v. Lewis Solomons Administrator
with the will annexed of John Birkby, deceased, and Thomas
Birkby et al., devisees and heirs of said John Birkby, deceased,,
defendants in error.

ERROR TO MACOUPIN.

The ei<]:htli section of the thirty-third chapter of the Revised Statutes^
entitled "Divorces," does not confer upon the courts an unlimited dis-
cretion to grant divorces,in all cases where they may deem it expedient
or advisable.

The validity of a writ of error does not depend npon the scire facias. If
the latter is informal or insufficient, an alias may issue to the proper
parties, which, when served, gives the court jiirisdiction. Jurisdic-
tion will also be acquired by the appearance of the parties.

This suit was heard before "Woodson, Judge, at May term..
1849, of the Macoupin Circuit Court.

The opinion gives -the facts, and statement of the case.

Weeir and Chesnut, for plaintiff in error.

J. M. Palmer, for defendant in error.

Caton, J. Ann Birkby filed a bill for a divorce against John
Birkby, and before it was brought to a hearing, the husband
filed a cross-bill against the wife, also praying for a divorce.
Upon these bills issues were made up and submitted to a jury,
who found the issues upon the original bill in favor of the

DECEMBER TERM, 1853. 121

Birkby v. Birkby (t al.

<lefendant therein, and the issues upon the cross-bill in favor of
the complainant, whereupon the court decreed a divorce in favor
of John Birkby. Since the decree was entered, he has died, and
Ann Birkby now prosecutes the writ of error against the heirs of
John Birkby, to reverse that decree, for the purpose of restoring
to her her rights as the Avidow of her late husband. We are of
■opinion that the allegations of the cross-bill are not sufficient to
authorize a decree for a divorce. The substance of those allega-
tions is, that she had become jealous of him and accused him of
improper intercourse with other women, which involved him in
difficulties in the neighborhood. That she refused to attend
to her household duties, and absented herself from his house,
sometimes for days and weeks together ; that she threatened to
take his life and to burn his buildings, and destroy his property.
If termagancy were one of the causes specified in the statute for
which a divorce may be granted, there can be little doubt that a
clear case is here made out. But it is admitted that this case is
not brought within any of the specified causes named in the stat-
ute. The causes of complaint are of the same character of some
of those specified in the statute, but less in degree than the legis-
lature has seen fit to prescribe. Here is desertion charged but
not of sufficient length of time to authorize a divorce for that
cause. And here is misconduct charged, partaking at least of
the character of cruelty, but the bill does not state facts showing
that she "has been guilty of extreme and repeated cruelty or
, iliabitual drunkenness for the space of two years," which the stat-
ute requires to authorize a divorce for that kind of misconduct.
But it is insisted that the decree was justified by the eighth section
of the thirty-third chapter R. S. entitled "Divorces," which is as
follows : "In addition to the causes hereinbefore provided, for
divorces from the bonds of matrimony, courts of chancery in this
State shall have full power and authority to hear and determine
all causes for a divorce not provided for by any law of this State."
On the one side it is contended that this gives the courts an
unlimited discretion to grant divorces for any cause which, in
their judgment, they may deem sufficient to render it advisable,
that the parties should be separated ; Avhile on the other, it is
contended that "all causes for a divorce" only embrace those
causes which are not enumerated in the statute, and which, at the
common or canon law, where held sufficient causes for a divorce,
as the consanguinity of the parties, or in cases where the mar-
riage was prohibited by law. Without adopting or rejecting this
last rule of construction as contended for, we have no hesitation
in saying that the law does not confer upon the courts an unlimi-
ted discretion to grant divorces in all cases, "where they may deem

122 SPRINGFIELD.

Birkby v. Birkby et al.

it expedient or advisable. Where the offense charged is of a
character which is provided for in the statute as a specific cause
for a divorce, the degree of the offense must be measured by the
statute, and where it does not come up to that standard, the courts
have no right to say that an offense of the same character, but
less in degree, shall be sufficient to dissolve the marriage con-
tract. Where the legislature has prescribed one measure of guilt
as necessary, the courts cannot say that a less shall be sufficient
Here has been unkind treatment, no doubt, but not to that extent
prescribed by the statute, and we think the statements of the bill,
and the verdict of the jury, did not authorize the decree.

An objection was raised, that the scire facias was not issued to-
the proper parties, and that therefore the writ of error should be-
dismissed. The fact is stated, but the conclusion drawn does
not follow. The validity of the writ of error does not depend
upon the scire facias. The writ of error is directed to the clerk
of the court below, to send up the record that it may be-
inspected by this cotrt ; and where the record is brought up by
the party and filed, prouerly certified, in the first instance, the
writ of error is unnecessary, or at most is but matter of form.
The filing of the record gives the court jurisdiction of the subject-
matter, and the scire facias is to the parties to appear and
answer the assignment of errors ; and if that is informal or
insufficient, an alias may be issued to the proper parties, which,
when served, gives the court jurisdiction of the persons also, or
such jurisdiction may be acquired by the voluntary appearance of
parties without service. Had the objection been urged at the
proper time, an alias scire facias would have been issued, but
they have appeared and answered to the merits of the writ, and.
it becomes our duty to decide the suit upon the merits.

The decree of the circuit court must be reversed.

Decree reversed.

(a) De La Hay r. De La Hay, 21 111. R. 255 ; Vignos r. Vignos, post 187.-

DECEMBER TERM, 1853. 123

Lane r. Soulardci! al.

Margaret Lane, plaintiff in error, t-. Soulard et aL, defend-
ants in error.

ERROR TO ST. CLAIR.

A married Avoman cannot, except by express enactment, couvej' her fee-
simple title to real estate.

From 1845 to 1847 there was no statute in this State, enabling married
women without the State to convey their lands lying within it.

The legislature cannot give eftect to conveyances 'made by married
women out of this State, during the two years when they were not
authorized to make such conveyances.

The bill alleges that Soulard conveyed certain property in St.
Louis to trustees, to hold in trust for appellant, a married
woman, provided she shall pay out of her separate estate, the
sum of $9,000, payable in four installments. That said Soulard
agreed to complete the improvements then in progress, by the
1st October, 1846. That to secure the payment of the first
installment more fully, being $2,000, to be paid 1st October,
1846 ; the appellant and her then husband executed a deed of
trust to a part of the defendants, as trustees for certain lands
in Illinois, owned in her right, which authorized the sale of said
lands, on the failure to pay said first installment ; and out of the
proceeds to pay, first, the cost, and then the sum of $2,000.
That upon the failure to pay any or all of the installments, or
the interest out of the separate estate of said Margaret B. Lane,
the property in St. Louis should be sold for the payment
thereof.

That said Soulard failed to complete said improvements in
the time and according to his contract, and that at the March
term of the St. Louis circuit court in the year 1851, said
Soulard obtained a decree for the sale of the property in St.
Louis, under Avhich decree said property was sold and purchased
by said Soulard for the sum of $6,600; that said first install-
ment foi-med a part of said decree, and that the proceeds of said
sale ought to be applied to the discharge of said installment ;
that she was a married woman at the time of the execution of
the deed of trust for lands in Illinois ; that the consideration
of the deed of trust has failed, and that it would not be just to
allow vSoulard to enforce the payment and still hold the property
in St. Louis. The bill further charges that her land has been
sold for taxes, and calls upon the court to require the trustees to

124 SPRINGFIELD.

Lane v. Soulard et aJ.

proceed at law to recover said property, and to enjoin the sale
until the title is settled. The answer admits the contract as
set out by appellant, alleges that he has completed his contract,
admits the proceedings in St. Louis, and sets up the decree in
St, Louis as conclusive as to the amount due — to which there
is a replication.

This cause was heard before Underwood, Judge, at August
term, 1853, of the St. Clair Circuit Court.

NiNiAN and EexjaiminEdw^ards, for plaintiff in error.

J. Gillespie and G. Trumbull, for defendants in eiTor.

Caton, J. Although many points were raised and ably
argued in this case, we shall confine ourselves in the decision
to one single question, which is unavoidably decisive of the
whole case. The Revised Statutes repealed all former laws on
the subject of conveyances of real estate, and authorized
married women Avithin this State to convey their land by
joining with their husbands and acknowledging the deeds in a
specified v/ay ; but no authority was given for married women
residing out of this State to convey their lands lying within it.
The law thus continued till the act of the 22d of February,
1857, which authorizes married women without the State to
convey their lands lying within this State.

In April, 1846, Mrs. Lane with her husband, executed this
deed of trust, in the city of St. Louis, where she then resided.
The deed of trust conveys the premises in question to certain
trustees, to secure the payment of certain moneys to Soulard.
The question is, whether this was a valid conveyance of the
premises. We shall not stop to adduce authorities to show,
that a feme covert cannot, except she be au thorized by an
express statute, convey her fee-simple title to real estate by deed.
She is incapable of doing so at the common law, and hence
there can be no law for it, unless it be by statute. Without a
statute, she is incapable of conveying by deed as she is by word
of mouth. From 1845 to 1847, there was no statute enabling
married women without the State to convey their
lands lying within it. This deed having been made without the
authority of law, and against law, was simply void ; as void
as if it had been expressly prohibited by a positive statute.
The second section of the law of 1847, provides that ^Jeme
covert not residing in this State, being above the age of eighteen
years, may join her husband in the execution of deeds, &c., of
lands lying within this State, and that she shall thereby be

DECE]VIBER TERM, 1853. 125

Lane v. Soulard et al.

fcarred of her right in like manner as if she was sole, and the
acknowledgment of such deed may be made in the same man-
ner as if she was sole, and the section concludes : "And the
provisions of this section shall apply to deeds, mortgages, con-
veyances, powers of attorney, and other writings, heretofore, as
well as those which may hereafter be executed." The third sec-
tion provides that such deeds, &c., which had been or might
thereafter be executed without the State and within the United
States, and acknowledged or proved in conformity to that
statute, should be admitted to record, and read in evidence
without further proof. Admitting that here was the deliberate
purpose on the part of the legislature, to give effect to convey-
ances made by married women out of the State, during the two
years when they were not authorized to make such convej^ances.
and the question arises. Had they authority to make such deeds
operative ? We cannot bring our minds to entertain a doubt
that the legislature had no such authority. Notwithstanding
this deed of trust, Mrs. Lane was, on the 21st of February, 1847,
as much the absolute owner of this land as if she had never
made such a deed. (a) That deed aiiected her right to it in no
way whatever, any more than as if it had continued a blank
piece of paper, or her name had been forged to it by another,
instead of being written by herself. She was no more authorized
by' law to put her name to that deed, so far as giving it efiect
was concerned, than a stranger had to write it for her. If the
legislature could give effect to a deed thus executed against the
provisions of the law, then they could make a deed at once which
would convey the title. If they could by force of the law make
her title pass where none had passed before, then it is^the law
which passes the title and not the deed. It is the act of the
legislature and not her OAvn act, which deprives her of her land.
If, on the 21st of February, she was the absolute owner of this
land, unaffected, uninfluenced, unprejudiced by any thing which she
had previously done or suffered, and on the 23d of February, she
had ceased to own it, by whose act had the title passed? Not
by her own act, certainly, for she had done nothing in the mean
time or previously, which could transfer the title. How then had
it passsd ? By the act of the legislature alone. She had not
done it, for she could not in any way, shape, or form, pass the
title ; but the legislature had taken her land from her and given
it to others. This they are expressly prohibited from doing, by
the constitution.

In support of the constitutionality of this law, we have been
referred to several decisions in Pennsylvania, and in some other

(a) Higgins v. Crosby, 40 111. B. 362 ; Lundley v. Smith, 46 ib. 536.

126 SPRINGFIELD.

Lane v. Soulard et al.

States, and in the Supreme court of the United States. Nor is
this the first time that our attention has been called to these
cases. Without, at the present time, expressing any opinion
upon the propriety of those decisions, it is sufficient to say, that
they are upon cases not like this ; but to sustain this law we
should have to go further than any of those courts have gone,
in sustaining legislative control over titles to real estate. Indeed,
the protection intended to be secured by the constitution would
be quite thrown down, and they would be left to dispose of the
titles of individuals as they please. In those cases the law had
authorized the parties to convey, but the conveyances had been
imperfectly executed or acknowledged, and the curative laws had
been passed to remedy such defects, and to confirm contracts
which had been authorized bylaw to be made. (a) Upon this
ground all those decisions were made. But the case before us is
quite different. Here, the law authorized no such contract what-
ever. In each of those cases there was an imperfect or defective
execution of a power. Here is a total want of power. There,
there was a capacity to act and an attempt made to exercise
that capacity. Here was a total incapacity to act, and
whatever was attempted to be done, was in direct violation
of the law.(6) Here, the party had attempted to do nothing
which the law had authorized her to do. Here, there was no
defect to remedy, but the entire act was void, not for the want of
form, but for the want of power ; and we are very clearly of
opinion that the legislature could not give effect to a conveyance,
which the law prohibited her from making, and thus transfer a
title by the mere farce of a legislative act.

The decree of the circuit court must be reversed, and a decree
entered in this court, enjoining the trustees named in the deed of
trust from proceeding to sell under that deed.

Decree reversed.

(a) Russel v. Rumsey, 35 111. R. 371-2 ; Rose et al. v. Sauderson, 33 111.
R. 250.

(b) Illinois Grand Trunk R. R. Co. v. Cook, Adm'r, 29 111. R. 241.

DECEMBER TERM, 1853. 127

Hatch et al. v. Waarner.

OziAS M. Hatch et al., plaintiffs in error, v. John B. Wagner,
defendant in error.

ERROR TO PIKE.

The purchaser at a sheriff's sale, upon an execution, of land in which
the defendant in execution had but an equitable interest, if he seeks
to recover the land, should show that the defendant in execution, at
the time of the levy and sale, had such an equitable title as could have
been enforced bj^ himself.

The bill in this case sets forth that at the April term of the
Circuit Court of Pike county, A. D. 1846, one Cyrus Knapp
recovered a judgment against James Holloway for $11.12^ and
costs of suit ; that an execution issued on this judgment on the
21st of May, 1845, directed to the sheriff of Pike county, which
was returned " no property found;" that an alias execution is-
sued on the same judgment on the 26th of June, 1846, directed
to said sheriff, and was by him levied within the lifetime of said
execution upon the southeast quarter of section twenty-six, tOAvn-
ship six south, range two w^est of the 4th principal meridian ;
that after duly advertising the land the said plaintiff, on the 8th
day of August, 1846, offered said land for sale, and that the
complainants, through 0. M. Hatch (who bought for the benefit
of complainants), became the purchaser thereof at sheriff's sale;
that after the expiration of fifteen months from said sale, no
redemption having been made, a sheriff's deed was taken upon
said purchase to complainant, Hatch, Avho holds the same and the
title thereby derived for the common benefit of the complainants ;
that Orville H. Browning was the patentee of said land from the
United States ; but at the time of said judgment, levy and sale
against the said Holloway, he was in possession of said land and
residing upon the same under the contract and title bond for the
purchase of the same from said Browning ; that said title bond was
conditioned to convey the said land to Holloway upon the full
payment of $300 to said Browning ; that said Holloway contin-
ued to reside upon said land under said bond until his death, and
had made and continued to make valuable and lasting improvements
thereon, to the value of at least $400 ; that Holloway had made
some payments on said title bond in his lifetime, but that there
was due on said bond, at his death, about $250 ; that after the
death of said Holloway, the widow of said Holloway, with the
money of said James Holloway, made a further payment on said

128 SPRINGFIELD.

Hatcli etal. v. "Wasrner.

bond; that after said HoUoway's death the defendant, John B.
Wagner, made an agreement by which he became the purchaser
of said land from the widow and heirs at law of said Holloway,
and from said Browning ; that he completed the payments due
under said bond from said Holloway, and took fi'om him a quit-
claim deed of the land ; that said Wagner, by said purchase,
claimed to have succeeded to all the rights, both of the heirs of
Holloway and of Browning, in said land, and charges that he is
now the only party interested therein as defendant.

Bill charges that under complainants' purchase of said land
they became entitled to Holloway's interest in said land, and that
said Wagner purchased subject to their better claim. Complain-
ants offer to bring into court such a sum of money as said Wag-
ner may have paid to complete the payments under said title
bond, to be paid to whomsoever entitled, &c.

Bill prays for answer and for discovery under oath of the
defendant, particularly as to the amount due on the contract with
Browning, and the amount paid by him thereon, and bill concludes
Avith offering to pay into court whatever sum, with interest, may
have been paid by said Wagner in completing the payments upon
said bond ; and they also offered to bring into court any further
sum the court may deem equitable in order to entitle them to
the benefit of their said purchase, to be paid to such person as
may appear to be entitled, and pray for a conveyance of the land
to them, &c.

To the bill as amended a general demurrer was filed at the
March term of said court, 1852, and sustained, and the bill of
complainants dismissed.

Complainants bring a writ of error and allege that the court
erred in sustaining the demurrer to the amended bill. 2d : The
court erred in dismissing the bill ; the court erred in not granting
the relief prayed.

The cause was heard before 0. C. Skes'NER, Judge.

M. Hay, for plaintiffs in error.

Browximg & BusiDsELL, for defendant in error.

Caton, J. This was a bill in the nature of a bill for a
specific performance of a contract for the sale of land, and
shows that Holloway had contracted with Browning for the
purchase of the premises in question for three hundred dollars ;
that he took possession and made improvements thereon ; that
judgments were obtained against Hollowav, an execution

DECEMBER TERM, 1853. 129

Hatch ct al. v. "Wagner.

issued and levied on the land, which was sold, and Hatch became
the purchaser for himself and the other complainants ; that
after this, Holloway died, leaving the widow in possession.
The bill states, that during Holloway 's lifetime, he paid Brown-
ing considerable amounts of money upon said agreement ; and
that at the time of Holloway 's death there was due to Browning
on said agreement about the sum of two hundred and fifty
dollars, as near as the complainants can ascertain. The bill
then shows, that the widow of Holloway made payments to
Browning out of funds belonging to Holloway's estate, and
that subsequently the defendant Wagner made an agreement,
by which he became the purchaser of said land from said
Browning, and from the widow and heirs of Holloway ; that
he computed the pajonents on said land under said agreement,
and took from Browning a quit-claim deed for the land. The bill
prays that Wagner may convey to the complainants, and they offer
to pay to him or bring into court whatever sum the court may
direct, and for general relief.

Admitting that the purchaser of land at a sheriff's sale upon
an execution, in which the defendant in the execution had but an
equitable interest, succeeds to all the equitable rights, and is
entitled to all the equitable remedies to which the debtor was enti-
tled, I still think that the demurrer to this amended bill was prop-
erly sustained. The bill should show that at the time of the levy
and sale, the debtor had such an equitable title as could have
been enforced against Browning. No subsequent act of indul-
gence or favor by Browning towards the debtor or his represen-
tatives, can inure to the benefit of the purchaser under the execu-
tion. The bill should show a positive and affirmative right in the
debtor at that time, to enforce the contract of purchase against
Browning. Most manifestly such a case is not shown by this
bill. Had Holloway, at the time of this sale, filed a bill against
Browning to enforce a specific performance of this contract, and
had stated no more than is here shown to have then existed, we
could not say that enough was shown to entitle Holloway to com-
pel Browning to convey the land to him. The bill does not show
Avhat where the terms of the contract of sale, when the money
was to be paid, or, in fact, any thing about it, except that he had
agreed to purchase the land for three hundred dollars, and that
at the time there were two hundred and fifty dollars due Brown-
ing upon the contract ; nor does the bill show that Holloway had
complied with the terms of the contract on his part, so as to enti-
tle him to a specific performance. We should know what were
the terms of the contract, so that we could judge whether Hollo-
way had complied on his part or not. Indeed, from the face of

130 SPRINGFIELD.

Polk V. Hill et al.

the bill the inference is, that Holloway had not complied with his
agreement, for it states there were at that time due to Browning
two hundred and fifty dollars. How long this had been due and
unpaid is not shown, nor is any excuse stated why Holloway had
not paid that money when it became due. Such a case as this, if
presented by Holloway at that time against Browning, would not
have stood the test of legal scrutiny for a single moment. The
purchasers certainly acquired no rights which did not then exist
in Holloway ; and they should show in their bill such a case as
would have entitled him, at that time, to recover.((3) Admit-
ting that they succeeded to all his rights, as they then existed, —
and it cannot be pretended that they acquired any more, — I am
of opinion that this bill is substantially defective, and that the
demurrer was properly sustained. Other objections might be
urged against this bill, such as the want of an averment of notice
to Wagner ; but I do not think it necessary to discuss them. I
think the decree should be affirmed.

Decree affirmed.

{n) Curtis v. Root etnl., 20 111. R. 523.

Trusten Polk, plaintiff in error v. Sarah A. Hill et al., defend-
ants in error.

ERROR TO ST. CLAIR.

The statute required that sales of laud for the taxes of 1843, should be
made on the second Monday succeeding the first daj' of the term at
which the judgment was rendered ; if more than two weeks intervene
between the commencement of the term and the sale, it is illegal and
void.

This cause was heard before Underwood, Judge, at April term,
1850, of the St. Clair Circuit Court.

G. Trumbull, for plaintiff in error

J, & D. Gillespie, for defendants in error.

Treat, C. J. This was an action of ejectment brought by
Polk against Hill, to recover the possession of eighty acres of
land lying in St. Clair county. On the trial, the plaintiff de-

DECEMBER TERM, 1853. 231

Phelps et al. v. Kellogg.

duced title from the United States ; and he proved that no taxes
were then due on the land, and that the defendant was in posses-
sion thereof at the commencement oi! the suit. The defendant
read in evidence a judgment rendered at the May term, 184-i, of
the St. Clair circuit court, against the tract in question and other
real estate, for the taxes due thereon for the year 1843 ; also a
precept issued on the judgment ; and a sherifPs deed for twenty-
five acres off of the east side of the tract. The term at which the
judgment was entered commenced on the 13th of May, 1844 ;
and the sales of the lands commenced on the 3rd of June there-
after. On this evidence, the court rendered judgment against the
defendant for the premises demanded, except the twenty-five acres
included in the sale for taxes.

The plaintiff was clearly entitled to judgment for the entire
tract. The sale for taxes was illegal and void as against him.
The statute required the sales to commence on the second Monday
succeeding the first day of the term at which the judgment was
rendered. It was so expressly ruled in the case of Hope v. Saw-
yer, 14 111. 254. (a) More than two weeks intervened between
the commencement of the term, and the sales of the lands. The
sales should have^commenced on the 2Tth of May, instead of the
3rd of June. The judgment is reversed, and the cause remanded.

Judgment reversed.

(a) See notes to this case.

William R. Phelp.s et al., appellants, v. William KellogCt,

appellee.

APPEAL FROM PEORIA.

The fact that a party has made proof of a pre-emption to the satisfac-
tion of the land officers does not give him a title to the land, until he
makes an entry of it, and pa5'S for it; anj' release of title prior to entry
and payment ceases as against the purchaser, so soon as the entry is
made.

But where a party covenants in a deed, that if at any time thereafter
he shall acquire title, that such title shall ennre to the benelit of the
srantee in the deed, it is binding on all persons deriving title through
the grantor with notice of the deed.

This was an action of ejectment brought by the plaintiffs, who
were plaintiffs below, to recover from defendant the possession

132 SPRINGFIELD.

Phelps et al. v. Kellogg.

o£ lot No. 4, in block No. 51, in Bigelow & Underhill's ad-
dition to Peoria, situate on a part o£ the northeast fractional
quarter of section 9, T. 8 N. 8 E. of the fourth principal me-
ridian.

The declaration contained two counts. The first claimed the
whole lot ; the second the undivided two-thirds part of said lot.

The defendants plead not guilty. The parties agreed to
submit the case to the court without the intervention of a
jury. The court, after hearing the evidence and allegations of
the parties, found the defendant not guilty. The plaintiffs
moved the court for a new trial, for the reason that the finding of
the court Avas against law and evidence, which motion was over-
ruled, and judgment rendered in favor of defendant and against
the plaintiffs for costs, to which finding of the court and the
overruling of said motion for a new trial, the plaintiffs then and
there excepted.

The plaintiffs, to maintain the issue on their part, proved that
on, before, and after the 5th day of April, A. D. 1832, John
L. Bogardus was a settler and housekeeper on the southeast
fractional quarter of section nine in township eight north, range
eight east of the fourth principal meridian, of which the lot in
controversy is a part ; that as such settler and housekeeper he
was entitled to a pre-emption right to said fractional quarter sec-
tion under the act of Congress, approved April 5th, 1832, entit-
led, An Act supplementary to the several laws for the sale of the
Public Lands ; that this right to a pre-emption was in due form
of law proved on the fourth day of August, A. D. 1832 ; that a
certificate of pre-emption was, in due form of law, issued to the
said John L. Bogardus on the fourth day of August, 1832, upon
his filing his said proofs of a right to a pre-emption, which said
certificate is as follows, to wit :

" Land Office, Quincy, Illinois, January 4th, 1833.
I hereby certify that on the 4th day of August, 1832, John L.
Bogardus, of Peoria, filed in this office evidence of his right of
pre-emption to the southeast fractional quarter of section nine,
township eight north, 'range eight east of the fourth principal
meridian, under the Act of Congress of April 5th, 1832.

fcsAMUEL Alexander, Register."

That on the 5th day of August, A. D. 1834, the said John
L. Bogardus made to Isaac Underbill a deed ; (this deed is the
same deed considered by the supreme court in the case of
Ballance v. Frisby et a/:, 2 Gilm. 141, and in the case of Frink
et al., V. Darst, 14 111, R. 304), which deed was duly acknowl-
edged and recorded in the office of the recorder of Peoria county

DECEMBER TERM, 1853. , 133

Phelps ct nl. r. Kellogg.

on the 13tb day of August, 1834 ; that said Isaac Underbill, at
the time of the execution of said deed, paid the full amount of
the purchase-money therein specified ; that on the 13th day of
July, A. D. 1832, the said John L. Bogardus made, executed,
and delivered to Lewis Bigelow and Samuel C. McClurc a deed,
as follows, to-wit: —

"Know all men by these presents, that I, John L. Bogardus,
of Peoria, in the county of Peoria, and State of Illinois, in con-
sideration of five thousand dollars to me paid by Lewis Bigelow
and Samuel C. McClure, of said Peoria, the receipt whereof is
hereby acknowledged, do hereby bargain, grant, sell, and convey
unto the said Bigelow and McClure, their heirs and assigns for-
ever, two undivided third parts of all my right, title, and inter-
est in and unto the southeast fractional quarter of section nine,
in township eight north, range eight east, in the military tract,
in said Illinois, together with two-thirds part of the ferry estab-
lished over the Illinois River at Peoria, at the outlet of Lake
Peoria, w^ith the boats, scows, and other crafts belonging to said
ferry, and all the implements and apparatus thereunto belonging,
to have and to hold the same to the said Bigelow and McClure,
their heirs and assigns forever, wdth all the privileges and appur-
tenances thereunto belonging ; and I do hereby covenant with
the said Bigelow and McClure, that if at any time hereafter I
shall acquire any further or additional title to the said land, the
same shall inure to them in proportion to their interest hereby
conveyed to them. In witness whereof, I, the said John L.
Bogardus, have hereunto set my hand and seal this thirteenth day
of July, A. D. 1832. John L. Bogardus [seal]." Which said
deed was duly proved and recorded in the recorder's ofiice of
Peoria county on the 8th day of August, A. D. 1832.

That on the 15th day of November, 1837, the said John L.
Bogardus, under his said pre-emption right, entered and pur-
chased said land of the United States at their land-office in
Qaincy, Illinois, and received a certificate of purchase therefor,
as follows, to-wit : —

" Land-Office, Quincy, Illinois, loth November, 1837.
It is hereby certified that John L. Bogardus, of New York,
did this day enter or purchase the southeast fractional quarter of
section No. 9, in township No. 8 north, of range No. 8 east, of
the fourth principal meridian, containing 23,-|i^o acres, as appears
of record in this office. Samuel Leech, Register."

That the purchase-money for the entry and purchase of said
land was furnished by said Underbill, and said purchase made
ILL. R. VOL. XV. 10

134 SPRINGFIELD.

Phelps et al. v. Kellogg.

with his money. That on the 5th day o£ January, A. D. 1838,
the land in question, before described, was, in due form of law,
patented to the said John L. Bogardus, under his pre-emption
and certificate as aforesaid.

The said plaintiffs showed a regular chain of title to said lot
through mesne conveyances from said Bigelow and McClure,
and Underbill, as will fully appear by the bill of exceptions.
But no question arising on any of the deeds, the chain of title is
here omitted.

It was further proved by the plaintiffs, that immediately after
the said fractional quarter was laid out into town lots by said
Bigelow and Underbill, and they exercised acts of ownership
over the said fractional quarter section by actually occupying
portions of the same, and by offering the said lots for sale at
public auction, and selling many of them to various persons, who
went into possession under such sales and purchases, and have
notoriously continued such possession and occupation ever since ;
that said plaintiffs and those under whom they claim title as
aforesaid, have been in possession of said lot (until the entry of
the defendant thereon on the day mentioned in the declaration)
more than ten years last past, and have paid all taxes which have
ever been assessed on said lot, and that such possession has been
public and notorious, and well known to the defendant ; that the
said defendant was in the possession of said premises on the day
of the service of the declaration in this suit, claiming to hold the
same adversely to the said plaintiffs.

On the part of: the defendant, ;ind for the purpose of his
defense, it was proved that the said John L. Bogardus died on
the 2d day of June, 1838 ; that previous to his death he made a
will, which will Avas duly proved and recorded on the 7th day of
July, A. D. 1838 ; that Mary Ann Bogardus, wife of said John
L. Bogardus, was duly appointed executrix in said will, with
full power to sell and convey the real estate of the said John L.
Bogardus ; that she was duly qualified as such executrix under
the laws of the State of Illinois ; and afterwards, to-wit, on the
25th day of September, A. D. 1815, as such executrix, by her
deed of that date, conveyed the said fractional quarter section of
land to Seth L. Cole.

This was all the evidence in the cause. The court decided
that the plaintiffs had not shown a good title to said lot, and
that the' said deed to Seth L. Cole showed a clear outstanding
title.

The plaintiffs assign the following errors : 1. General error,
that the court erred in rendering judgment for the defendant.
2. In overrulino; motion for new trial.

DECEMBER TERM, 1853. 135

Phelps et (d. v. Kellogg.

This cause was heard before Peters, Judge, at November
term, 1853. of the Peoria Circuit Court.

E. N. Powell, and N. H. Purple, for appellants.

C. Ballance, for appellee.

Treat, C. J. First. This court held in the case of Frink v.
Darst, 14 111. 304, that the deed from Bogardus to Underbill
only transferred the interest that Bogardus then had in the
land ; and that it did not operate to pass the title subsequently
acquired by him. Being a mere quit-claim deed without cove-
nants, it could not, on the principles of the common law, operate
by way of estoppel to conclude Bogardus from asserting the
after acquired title. As it did not purport to convey an estate
in fee-simple absolute, the title afterwards obtained by Bogar-
dus could not, under the provisions of our statute, inure to the
iuse and benefit of Underbill. That decision was the result of
matui'e consideration ; and it expressly determined this to be
the legal operation and effect of the deed. It was, however,
made upon the naked instrument, and without reference to a
state of facts disclosed in this record. It now appears, that
prior to the date of the deed, Bogardus had established a right
of pre-emption to the land ; and that subsequent to the execu-
tion of the deed, he entered the land under this pre-emption right
with funds furnished by Underbill, and obtained the legal title
from the United States. The question therefore arises, whether
these additional circumstances change the legal aspect of the
case.

The fact that Bogardus made proof of a pre-emption to the
satisfaction of the land officers, gave him no title to the land.
It merely established a right in him to enter the land at the
minimum price. He had to make the entry and pay the pur-
chase-money, before he could obtain any title whatever. Until
that was clone, the title remained exclusively in the United
States. At the date of the deed, the government had not parted
with the title. Bogardus had, therefore, no title to release, and
Underbill acquired none under the deed. As between the
parties. Underbill succeeded to the possessory rights of Bo-
gardus. By the force of our laws, he became entitled to the
possession of the land, and might recover the possession from
Bogardus by action of ejectment. He could also retain the pos-
session against third persons, so long as the land continued to
be the property of the United States. But these possessory
rights wholly ceased on the entry of the land. They could not

136 SPRINGFIELD.

Phelps et at. v. Kellogg.

be enforced against those deducing title from the United States.
Bogardus acquired the complete legal title by the entry, and
he could then compel Underbill to surrender the possession.
He could maintain ejectment against Underbill, because the
latter could neither show title in himself, nor an outstanding-
title in a third person.

The fact that the land was entered with the money of Under-
bill, does not affect the Cjuestion of title in this case. This is
an action at law, and the legal title must prevail. The court
cannot inquire into the equities of the parties. They must be
ascertained and adjusted in another forum. Where land is
purchased in the name of one person with the funds of another,
the legal estate is vested in the former. The latter acquires
only an equitable estate, and be must resort to a court of equity
to enforce it against the legal title. He cannot assert it in an
action of ejectment. It may perhaps be, that a trust resulted!
in favor of Underbill by the payment of the purchase money.
If so, he and those claiming under him must seek relief in a
court of equity. It is only in equity that it can be enforced against
the legal estate. The trust results from the payment of
the money, and not because of the prior conveyance. The deed
only professed to release the present interest of Bogardus in the-
land, and as he had not at the time either the legal or the equitable
estate, Bogardus had, at most, only the right to purchase the
land within a specified time at a certain price, and a license
to occupy the same until the termination of that right. Whether
this right of pre-emption was assignable, so as to authorize Un-
derbill to enter the land, is a question which does not arise. Tha
land was not entered in his name, nor in that of the represent-
ative or assignee of Bogardus. The entry was made in the
name of Bogardus, and the title passed from the United States
to him. He had not previously done any act, which operated to
transfer the title through him to Underbill. He Avas not
estopped by the deed from asserting title against Underbill, for
it contained no covenants, express or implied. He did not
undertake to convey an estate in fee, and therefore the after-
acquired title did not inure to the benefit of Underbill.

In no point of view, can Underbill and those claiming
through him assert title under this deed. The cases cited on
the argument do not maintain a different doctrine. Delauney
V. Burnett, 4 Gil. 454, is clearly distinguishable from this case.
In that case, the entry was made in the name of "the legal
representatives of R. P. Guyard ;" and the court decided that
the title vested in the grantee of Guyard. The question was to
whom the grant was made ; in other words, who was the legal

DECEMBER TERM, 1853. 137

Phelps et al. v. Kellogi^.

representative of the pre-emptor — tlie heir or grantee. If this
land had been entered in the name of the legal representative or
■assignee of Bogardus, that case might be applicable. It might
•then be inferred from all the circumstances of the case, that the
purchase was made by Underbill, and that the government
designed to make the grant to him. The (jrrand Gulf Railroad
V. Bryan, 8 S. & M. 234, and Montgomery v. Sandusky, 9 Mis-
souri, 714, have no bearing upon the present case. In them,
confirmations had been made to the legal representative of the
original claimants of the land ; and it was held that the title
passed to the grantees of those claimants. The cases of Stod-
dard V. Chambers, 2 How. U. S. 284, and Marsh v. Brooks, 14
ih. 513, are to the same effect. (a)

Second. " The deed from Bogardus to Bigelow and McClure
clearly operates to pass the after acquired title to two-thirds of
the land. It contains this provision : "I do hereby convenant
with the said Bigelow and McClure, that if at any time hereafter
I shall acquire any further or additional title to the said lot of
Jand, the same shall inure to them in proportion to the interest
hereby conveyed to them." This is an express covenant that any
title which the grantor shall afterwards receive, shall inure to
and be vested in the grantees. It is a covenant running with
the land, and binding on all persons deriving title through the
grantor, with notice of the deed. It concludes them from setting
up title against the grantees and their assigns. It was manifestly
the intention of the parties, that the title when abtained from the
■government should pass to the grantees. This is apparent from
.the circumstances of the case. Bogardus at the time was not

■ the owner of the land, but he expected to acquire the legal estate

under a pre-emption right. He sold two-thirds of the tract to

.Bigelow and McClure for the consideration of $5,000, and in-

:serted this covenant in the deed for the express purpose of

transferring to them the after acquired title. The parties con-
tracted with direct reference to such a state of case as has tran-
■• spired. This deed was recorded long before the executrix of
iBogardus made the conveyance to Cole. The latter and those
claiming under him, had therefore full notice of the deed and the

■ covenant in question, and are bound thereby.

The court erred in finding the issue on the second count in
favor of the defendant. On the evidence, the plaintifls were
(entitled to recover two. thirds of the premises demanded.

The judgment is reversed, and the cause remanded.

Judgment reversed.

4n) Post 573 and Hogan v. Page, 3 Wal. R. 60-!i.

138 SPRINGFIELD.

Kimball v. Couchman.

Hiram Kimball for the use of Phineas Kimball, Jr., plaintiflT
in error, v. Melzar Couchman, defendant in error.

ERROR TO HANCOCK.

"Where a sheriff, charged with an execution, takes from the defendants
personal property, and for the security of its delivery, also takes audi-
tors' warrants and county orders, to be refunded it^tlie execution is
satisfied or otherwise legally disposed of, the sheriff cannot afterwards
levy upon the warrants and orders, in violation of his agreement. («)

This cause was heard at the March term, 1853, of the Han-
cock Circuit Court, 0. C. Skinner, Judge, presiding.

For statement, see opinion of the Court.

Warren and Edmonds, for plaintiff.

Broavning and Bushnell, for defendant.

Caton, J. This declaration is upon an agreement, by which
the defendant acknowledged to have received from the plaintiff
$92 in auditors' warrants, and $1-19.11 in county orders, to be
held as part security for the delivery of certain personal prop-
erty, levied upon by virtue of an execution, which he held as
sheriff, against the plaintiff; and the defendant agreed, that he
would refund to the plaintiff the said warrants and orders, pro-
vided the plaintiff would either satisfy the amount of the exe-
cution and costs, "or otherwise legally dispose of the same."
The declaration then avers, that afterwards the plaintiff filed his
bill in chancery, and obtained an injunction restraining the col-
lection of the said execution, which injunction was served upon
the defendant before the return day thereof ; and that afterwards,
such proceedings were had in that suit in chancery, that said
injunction was made perpetual, of which the defendant then and
there had due notice. The declaration then avers a demand of
the defendant to refund the warrants and orders, which he re-
fused to do.

To this declaration the defendant pleaded that he had, after
he received the warrants and orders as aforesaid, levied the
said execution upon them, by order of the attorney of the
plaintiffs in the execution ; and that he had paid them over to
the said plaintiff at par, in part satisfaction of the said execu-
tion.

(a) Hood V. Moore, 4 Gil. R. 107; Trumbull i\ Nicholson, 37 111. R. 148.

DECEMBER TERM, 1853. 139

Kimball v. Couchman .

To this plea there was a demurrer, which was ov'erruled,
and judgment entered against the plaintiff for costs. The
decision upon this demurrer, presents the only question in the
case.

We discover nothing either illegal or immoral in this contract.
The inference is, although it is not expressly stated, that after the
sheriff had levied the execution upon- the plaintiff's property that
he wished to retain possession of: it, and for that purpose gave
security to the sheriff, as we should presume, such as the law
authorized and required him to take in such a case, and as collat-
eral to this security, he placed in the hands of the sheriff the war-
rants and orders, under the agreement stated. It may be that the
sheriff had no right to demand this additional security, but having
exacted and taken it, he certainly cannot be justified in retaining
or converting it, in violation of the agreement. Indeed, if the
sheriff had seen fit to allow the plaintiff to retain the possession of
the property without any forthcoming bond, as the statute requires,
but solely upon the pledge of these securities, we do not think he
could repudiate the contract as illegal, and appropriate the securi-
ties in violation of the agreement.

The question then arises, did he so appropriate them ? Of
this we think there can be no doubt. He agreed to re-deliver the
warrants and orders to the plaintiff, in case the plaintiff should
pay, "or otherwise legally dispose of the execution." During
the lifetime of the execution, the plaintiff" obtained an injunction,
restraining the collection thereof ; which injunction was subse-
quently made perpetual. This was undoubtedly a legal disposi-
tion of the execution. By this it was as effectually disposed of,
as if it had been paid in full ; or as if the plaintiff in exe-
cution had ordered it to be returned satisfied. It was not and
cannot be denied, that this was a complete fulfilment of the con-
dition of the agreement. The plaintiff was undoubtedly bound
to dispose of the execution in some legal mode, so as to re-
lieve the sheriff from the duty of collecting the money upon
it, before the return day. This he did by obtaining the injunc-
tion. More he could not reasonably be required to do, during
that time. This relieved the sheriff from all obligation to
proceed to sell the property levied upon, or otherwise collect the
amount due upon the execution. Whether the sheriff paid the
warrants and orders over to the plaintiff in the execution, before
or after the injunction was granted, the pleadings do not show,
nor is it material. If he chose to anticipate the action of the
court upon the application for the injunction, by delivering over
the securities in his hands, betook the risk of the present plaintiff
complying with the condition of the contract, within the time

140 SPRINGFIELD.

Gibson v. Manly et al.

allowed him for so doing. We are of opinion, that the plea
shows no sufficient reason wh}- the defendant shall not respond in
damages for the violation of his agreement, in not refunding the
warrants and orders, according to its terms ; and this without
adverting to the question argued at the bar, as to the
right of the sheriff to levy the execution upon these secu-
rities.

The judgment of the circuit court must be reversed, and the

cause remanded.

Jads'inent reversed.

Benjamin Gieson, plaintiff in error, v. Uri Manly et al..,
defendants in error.

ERROR TO MENARD.

In ejectment, if the party allows the year to elapse without getting a
judgment vacated in the circuit court, and runs his chance of getting it
reversed in this court, and fails, the judgment becomes conclusive, and
iie has no remedy.

Where an appeal is taken or writ of error prosecuted, the statute still
gives the circuit court power to vacate the judgment within the
year.('0

Tins cause was heard before Woodson, Judge, at May

term, 1853, of the Menard Circuit Court.

The facts of the case will be found in the opinion of the
Court.

T. L. Harris, for plaintiff in error.

W. Herndon, for defendants in error.

Caton, J. This was an action of ejectment, and on the first
day of April, 1852, a second trial was had in the circuit court,
which resulted in a judgment in favor of the defendant below.
That judgment was brought to this court and affirmed. After
the decision of this court, and on the twenty-fourth of May,
1853, the plaintiffs below moved the court to reinstate the case
on the docket, and to vacate the judgment and grant a new
trial, which motion the court sustained ; and the only question
presented is, whether the court had the right to grant a new

(fl) Rees?). City of Chicago, 40 111. R. 108.

DECEMBER TERM, 1853. 141

Gibson v. Manly et al.

trial after the expiration of the year from the time when the
judgment Avas rendered.

The thirtieth section of our ejectment hiw reads as follows :
"The court in which guch judgment shall be rendered, at any
time within one year thereafter, upon the application of ihe
party against whom the same was rendered, his heirs or
assigns, and upon the payment of all costs and damages
recovered thereby, shall vacate such judgment and grant a new
trial in such cause ; and the court, upon subsequent application
made within one year after the rendering of the second judg-
ment in said cause, if satisfied that justice will thereby be pro-
moted, and the rights of the parties more satisfactorily ascer-
tained and established, may vacate the judgment and grant
another new trial ; but no more than two new trials shall be grant-
ed under this section." Without this statute the circuit court
could not grant a new trial after the term at which the judg-
ment Avas rendered. During the continuance of the term the
judgment is under the control of the court, but after the term,
it becomes conclusive, so far as the jurisdiction of that court is
concerned. In view of the fact, however, that by our statute
judgments in ejectment are made conclusive, as between the
parties to the suit and their privies upon the title to the premises,
authority was conferred upon the circuit court to vacate judg-
ments in ejectment, and grant new trials upon certain terms at
any time within one year after judgments are rendered. The
first new trial is given to the losing party as matter of right,
upon the payment of costs and damages, if applied for within
that time ; and the court may, in its discretion, grant a second
new trial within the year after the second judgment. Upon
this statute alone does the power of the circuit courts depend
for granting new trials after the close of the term at which the
•judgment is rendered, and when exercised, it must be done in
pursuance of the statute, and not otherwise. The statute has
made no provision for excluding from the computation the
time during which the case was pending in the court for review,
and if the statute does not exclude it, the court has no power to
do so, notwithstanding an appeal may be taken or writ of error
prosecuted ; the statute still gives the circuit court the power to
vacate the judgment within the year. For that purpose the
cause still remains before the circuit court. If the party will
allow the year to elapse without getting the judgment vacated
in the circuit court, he must run his chance of getting it
reversed in this court ; and if he fails here, the judgment becomes
conclusive, and he has no remedy. The order of the circuit
court, vacating the judgment and granting a new trial, must be

142 SPRINGFIELD.

The People, exrcl. Manier v. Couchman.

reversed, and the judgment whicli was entered on the first of
April, 1852, must stand as the judgment of the court, and the
cause remanded to the circuit court, with directions to execute
the same.

Juds^inent reversed.

The People, on the relation of Wesley H. Manier, plain-
tiffs in error, v. Miluar Couchman et al., defendants in
error.

ERROR TO HANCOCK.

If the law providing for township organization should be repealed, it
must be done by pursuing the same course and adopting the same
guarantees to protect the rights of all, which were required to be ob-
served in the adoption of the system.

This proceeding was heard before 0. C. Skinner, Judge, at
October term, 1853, of the Hancock Circuit Court.

This was a proceeding by quo ivarranto against the defend-
ants, as county judge and associate justice of Hancock county.

Hancock adopted township organization under the law of
1849, by a vote Avhich is admitted in the record to have been
legal. Under the new township organization law of 1851 a
new vote was taken.

In 1853 a special law was passed, authorizing Hancock^
county to take another vote as to the adoption of township
organization. The vote was taken, and resulted in a majority
for its adoption.

The defendants herein have disregarded this vote, and are
acting as county judge and associate justice, performing the
duties of supervisors in relation to county business.

These facts appear by the pleadings upon a demurrer, to
which the case comes to this court.

The question for decision is, whether the county has adopted
township organization or not.

Williams & Lawrence, and Blackwell and Beckwith,
for the relator.

DECEMBER TERM, 1853. 143

The People, ex rel. Manier v. Couchman,

Wheat & Grover, and Warren k Edmunds, for respon-
dents.

Caton, J. The sixth section of the seventh article of the
constitution provides, that " The general assembly shall pro-
vide by a general law for a township organization, under which
any county may organize whenever a majority of the voters of
such county, at any general election, shall so determine." At the'
first session of the legislature, after the adoption of the consti-
tution, in obedience to this provision, a general law was passed
providing for township organization, to be voted upon in the
several counties, at the ensuing general election. At that elec-
tion the county of Hancock adopted the law by the requisite and
constitutional vote, and organized accordingly. At the next
session of the legislature this law Avas amended, or rather a sub-
stitute for it was adopted, by the fourth and fifth sections of the
twenty-fifth article of which it was provided, that upon the peti-
tion of fifty legal voters of any county which had adopted town-
ship organization, an election should be held at the next annual
town meeting, for or against township organization ; and if it
should appear that a majority of all the voters voting at such
election voted against such township organization, then the county
so voting should cease to act under such organization. Under
this law an election was held in Hancock county, at which
election, we shall assume, a majority of the voters voted against
township organization, although to arrive at this conclusion, it
would become necessary to sustain the objections to the re-
turns of two towns in the county, by which their votes were
excluded in the canvass. With the view we take of this case,
that becomes immaterial. We do not think the legislature had
the power to allow a county to abolish township organization,
where it had been adopted in the constitutional mode, in a
way less solemn, or with different formalities or safeguards to
secure the most deliberate action of the people, than the con-
stitution required should be observed in its adoption. This, we
are aware, is a grave question, and it is certainly a new one,
so far as our observation has extended, and it never could
arise except under a constitution like ours, which requires a
^vote of the people to give the law vitality in the particular
' county. Such constitutional provisions are of modern inven-
tion, still it is the duty of the courts to see that the rights
to the people intended to be secured by them, shall not be frit-
tered away. The question is not here presented, whether the
legislature had a right to change the details of the law, as ex-
perience might suggest or demonstrate to be necessary, but it

144 SPRINGFIELD.

The People, ex rel. Manier v. Couchman.

is "whether the legislature had a right to abrogate the system
altogether, after it had been adopted by the constitutional vote.
The former they may have the right to do, for that seems to be
contemplated by the language of the constitution ; for it pro-
vides, that after a county has voted for township organization,
" the affairs of said county may be transacted in such manner
as the general assembly may provide." It is manifest that this
provision, to be made for the transaction of county affairs, shall
be under the township system, for the provision has express
reference to that system, which was by the constitution secured
to those counties, a majority of whose voters should adopt it.
It would be trifling with the constitution to say, that while it
commanded the legislature to provide a system of township
government, and secured the right to the people to adopt it by
their vote, it was at the same time left to the legislature to
nullify and abrogate, the whole, and thus at their mere pleasure
take away those rights which the constitution had guaranteed
to the counties, and for the enjoyment of which they were com-
manded to provide. Can it be said that they were commanded
to obey the laAv and do the act, and then were permitted to
turn round and destroy it ? Such would not be a sensible or
a reasonable construction of the constitution. If ris-hts are
secured by the constitution, they cannot be destroyed by the
legislature, although they may have authority to regulate them,
or prescribe the mode of their exercise. This, to my mind, is
exceedingly clear. If the legislature cannot take away this
right of township organization or township government them-
selves, by a direct act, they cannot authorize others to take it
from them. By allowing the right to be taken away by a dif-
ferent and less guarded vote than that by which it was adopted,
is in effect like allowing others to take it from them. The con-
stitution provides that township organization may be adopted by
a majority of the voters of a county at a general election, but
at none other. There was an object in requiring this vote to be
taken at a general election, and that object undoubtedly was,
to obtain the fullest and fairest expression possible of all the
voters of the county. While it might be reasonably supposed
that all the voters would attend a general election, when the
officers of the State and Federal Government are to be elected,
no such general attendance may be expected at a special elec-
tion, where the interests at stake are generally less momentous ;
and hence, if the subject were allowed to be acted upon at a
special election, the system might be adopted by less than a
majority of all the voters of the county. If it was deemed
necessary to protect the interests and wishes of the majority in

DECEMBER TERM, 1858. 145

Stewartson v. Stewartson.

the township sj'stem, that it should be voted upon at a general
election, it is equally important and essential to the rights of: the
majority that when they have thus adepted the system, it shall not
be taken from them except by a vote at a general election, when
all may be presumed to attend. Although the constitution makes
no express provision for the abandonment of the system when
once adopted according to its provisions, w^e are not prepared to
say that it may not reasonably be construed to allow the legisla-
ture to provide for its abrogation ; but if they do so it must be
done by pursuing the same course and adopting the same guaran-
tees to protect the rights of all which the constitution requires to
be observed in the adoption of the system, that is to say, it must
be done at a general election and by a majority of the voters.
Such was not the case here. The system was abrogated in Han-
cock county, not at any general election, but only at their town
meetings, when there was not even a county officer to be elected ;
and when even the law provided no judge or clerks to hold the
election and make the proper returns. This is a fatal objection
to the whole proceeding, and to that portion of the law under
which it was had. This conclusion supersedes the necessity of
inquiring into the regularity of the returns which were made, or
into the legality or the results of the election, which was held
under the special law of 1843. We are of opinion that the
township system never was legally abrogated in Hancock county
after its first adoption under the law of 1849, and that the peo-
ple were entitled to judgment.

The judgment of the circuit court must be reversed, and the
cause remanded.

Juds:ment reversed.

Mary Jane Ste-\vartson, appellant, t?. William Stewartson,

appellee.

APPEAL FROM SHELBY.

Where lands are lield by the wife, who applies for a divorce, the
court may, upon decreeino; alimony, direct that such lands be divided
between the parties, and that they execute to each other conveyances
to perfect such decree. («)

(ff) Von Glahni\ Von Glahn, 4G 111. R. 13G.

146 SPRINGFIELD.

Stewartson v. Stewartson.

Unless this court can see that manifest injustice has been done, it
will not disturb the decree of the court below upon a question of ali-
niony.(n;)

This cause Avas heard before Emerson, Judge, at May term,
1853, of the Shelby Circuit Court.

Mary Jane Stewartson, the appellant, was married to William
Stewartson, the appellee, in the year 1848, and had at her mar-
riage $320 and upwards, which afterwards came to the use of the
appellee and Avas appropriated by him.

That shortly after the marriage, appellee,with $50 of appellant's
money, entered, in the name of the appellant, a forty- acre tract
of land.

Afterwards, in April, 1850, appellee abandoned appellant,
and has always since refused to return to or live with her.

The appellant was left in possession of the dwelling-house of
appellee and some few articles of personal property, of which
she sold a part and out of the proceeds entered in her own name
another forty-acre tract of land, unimproved, but contiguous to
appellee's farm.

In May, 1852, and more than two years after the abandon-
ment, appellant filed her bill for divorce, and at the November
term, 1852, obtained a decree of divorce and an allowance of
$50 alimony yearly. The proceedings were had in Shelby circuit
court.

It was admitted on the trial that appellee's farm consisted of 165
acres of land (exclusive of the land entered in appellant's name)
of which farm 120 acres were in cultivation and worth a yearly
rent of $1 per acre, and also that the appellee had personal
effects to the amount of $200 and upwards. The question as to
the title to the two tracts of land entered in the name of appel-
lant was left by the court to future adjustment ; and also any
proper modification of alimony.

The parties agreed that the foregoing be considered the evi-
dence, and a cross-bill supposed to befiledby the appellee against
the appellant for the conveyance of the two tracts of land en-
tered in the name of appellant by the appellee, and in the modi-
fication of alimony. Upon which issue shall be supposed to be
joined, etc.

At the May term, 1853, the agreed case (substantially the
foregoing) was submitted to the Judge of the Shelby circuit
court, without the introduction of any other evidence than the
agreed case, which is in writing and made a part of this record.
And the court, after having examined the said agreed case,
ordered and decreed that the appellant convey to the appellee all
her right, title and interest in the tract of land last entered in

{n) Joliff i\ Joliff, 33 111. R. 528, and cases cited.

DECEMBER TERM, 185^. 147

Stewartson v. Stewartson.

her name, and the amount of alimony heretofore allowed her, be
reduced from $50 per annum to $30 per annum, and that the
appellee pay the cost.

From which decree appellant appeals to this court.

A, Lincoln and S. W. Moulton, for appellant.

A, Thornton, for appellee.

Caton, J. At the time of the marriage of the parties, the
complainant had 320 dollars in money, which came to the hands
of the complainant ; w^ith fifty dollars of which he entered a forty
acre tract of land in the name of the complainant. The balance
he appropriated to his own use'. When the defendant abandoned
the complainant, he left her in possession of his dwelling, and
some personal property, a part of which she sold, and with the
proceeds purchased another forty acre tract of land in her own
name. The rents of the defendant's real estate are about $120
per annum, being one dollar per acre for the improved part, and
he has personal property of the value of 200 dollars. After the
divorce was decreed, the question of alimony came on to be con-
sidered, and also the rights of the parties as to the disposition of
the land standing in the name of the complainant ; the above
"facts being considered as upon a cross-bill. The court decreed
that the complainant should convey to the defendant the premi-
ses last above mentioned, and should retain the first, and that
the defendant should pay to her thirty dollars per annum, as ali-
mony, to secure which a lien was created upon the forty acres of
land which she Avas decreed to convey to him. From this decree
the complainant has appealed to this court.

We are not disposed to disturb the decision of the circuit court.
There can be no question as to the propriety of that portion of
the decree which directs the complainant to convey to the defend-
ant the forty acres Avhich she entered with the proceeds of prop-
erty which she had sold, belonging to him. It was bought with
his money, and there can be no doubt he had the right to claim
it as his own. While there was an undoubted propriety in alloAV-
ing her to retain the forty acres which he had entered in her name,
Avith money which she had brought to him at the marriage : it is
worthy of consideration upon the question of alimony, that that
forty acre tract had all been improved by him, and constituted a
part of his farm, and by those improvements its value must have
been enhanced, and rendered immediately available and product-
ive for her support. What is the present value of that lot does
not appear ; but if it is worth as much rent per acre as the

148 SPRINGFIELD.

Kennedy et al. v. Northup et al.

balance of the farm, — and there is nothing in the case to show
that it is not, — it will produce an annual income of forty dollars.
In addition to this, the court allowed her thirty dollars per year,
thus securing her an annual income of seventy dollars ; while his
income, after deducting the thirty dollars, will be but ninety dol-
lars per annum. With this we cannot say that injustice was done
her, but, on the other hand, think she receives a liberal allow-
ance, considering the circumstances of the defendant. Before
we should feel justified in disturbing a decree of this kind, we
ought to be able to say that manifest injustice has been done.
The conduct of the parties may very properly be taken into con-
sideration, upon the question of alimony. That is not before us
as it was presented to the circuit court upon the hearing of the
case for the divorce, so that, to that extent at least, the circuit
court had more facilities for judging of the respective merits of
the parties than we have. In cases where the circumstances may
justify a divorce under our statute, there may be widely different
degrees of merit-on the one side, and censure on the other, which
should very properly be considered in determining the question
of alimony, quite independent of the pecuniary circumstances
of the parties. Hence the decision of the circuit court is entitled
to every reasonable intendment in its favor. (a) But if we look
alone at the pecuniary circumstances of the parties, as mani-
fested by the facts stated in this record, we are well satisfied
that the court below was sufiiciently liberal towards the complain-
ant.

We must afiirm the decree of the circuit court.

Decree affirmed.

(a) Where lands are set aside as alhnony, third parties have notice of
it. Bhie V. Bkie, 38 IlL R. 10.

Jane C. Kennedy et aL, appellants, v. Henry Nortiiup et a!.

appellees.

APPEAL FROM ADAMS.

It is tlie riglit and duty of a court of equity to determine from the
circumstances of the case, as bearing upon the rigiits of parties,
"whetlier it will assume jurisdiction in cases of fraud, or not ; and the
court will interfere upon a proper case presented to set aside a title
fraudulently obtained.

DECEMBER TERM, 1853. 149

Kennedy et al. v. Northup et al.

The words "subsequent purchasers" in the recording act, mean sul)-
sequent jmrchasers from the heir, as well as from the original grantor.

This cause was heard before 0. C. Skinner, Judge, at Octo-
ber term, 1853, of the Adams Circuit Court.

On the 9th day of May, 1853, Jane C. and Sarah Kennedy
filed their bill in the Adams circuit court in chancery, against
Robert Weiant, Lovinia Otto, Charles Otto, Caroline Troxell,
William H. Troxell, Sabina Otto, Henry Northup, Eli Ebert, and
A. B. Wheeler, all of whom are non-residents except Ebert and
Wheeler, and also filed affidavit of such non-residence. Sum-
mons was duly issued, and notice given at the October term, 1853.
Said bill was taken as confessed, as to all of said defendants
except said Northup, Ebert, and Wheeler, who appeared by their
counsel and filed their demurrer to the complainant's bill, and
the complainants joined in demurrer, and upon the hearing the
court sustained the said demurrer, and dismissed said bill abso-
lutely as to said Northup, Ebert, and Wheeler, which disposed
of the whole case. No relief being sought as to the other
defendants.

The bill states that on the 24th of March, 1818, the south-
east quarter of section one, T. 2 S. R. 7 W. of the fourth prin-
cipal meridian, in Illinois, was granted by the United States to
one Peter Weiant, by letters patent of that date, and that the
title thereof in fee thereby became vested in the said Peter
Weiant ; that afterwards and while said Peter Weiant was
seized in fee of said premises, and on the 19th day of June,
A. D. 1818, said Weiant by his deed of that date, for a valua-
ble consideration, conveyed said premises to one Robert D.
Stewart, in fee, which deed was recorded in Adams county
on the 26th day of December, 1850 ; that while said Robert D.
Stewart was seized in fee of said premises, and on first day of
June, 1820, said Stewart and his wife, by their deed of that
date, for a valuable consideration, conveyed said premises in fee
to one William M. Kennedy, which was on the 23d day of May,
1821, duly recorded in the recorder's office of Pike county,
Illinois.

The said deed from said Stewart to Kennedy, recorded as
aforesaid, recites that ''whereas James Monroe, President of
the United States of America, did, by his patent under the seal
of the general land-office, signed with his name at the city
of Washington, on the" 24th day of March, 1818, "granted
unto Peter Weiant, late a private in Biddle's company of
artillery, a certain tract of land, containing one hundred and
sixty acres, being the southeast quarter of section one, of town-

ILL. R. VOL. XV. 11

150 SPRINGFIELD.

Kennedy et al. v. Northup et al.

ship two south, range seven west, in the tract appropriated by
acts of Congress, granting lands to the late army of the United
States, passed on and since the 6th day of May, 1812" — "and
whereas the said Peter Weiant did, by his transfer, written on
the back of said patent, transfer, set over, bargain, and sell the
said patent with all the lafnd therein contained and granted, in
as full and ample a manner as the same was granted unto
him, to Robert D. Stewart, first party to these presents, and to
his heirs and assignees forever" — "which transfer is dated on
the 19th day of June, 1818" — "and acknowledged on the same
day" — "reference thereto being had, will more fully appear"
— "and charges that the same was notice to subsequent pur-
chasers and creditors, that said Weiant had conveyed said
premises to said Stewart, and that said Kennedy claimed the
same by conveyances from said Peter Weiant, and that by
proper inquiry the fact aforesaid would have been ascertained ;
that said William M. Kennedy died on the 25th day of Sept.
1839, intestate, seized in fee of said premises ; that said prem-
ises descended to the comjolainants, the children and only heirs
at law of said Wm. M. Kennedy ; that up to the 20th Novem-
ber, 1850, except as stated in said bill, said premises had been
vacant ; that the taxes levied on said premises had been paid
by said Wm. M. Kennedy during his lifetime, and by the com-
plainants since his death, through Messrs. Moore, Morton &
Co., of Quincy, Illinois, their agents; that on the olst day of
May, 1850, a paper dated 31st January, 1850, purporting to be
a deed of grant, conveyance, confirmation, and release, of all the
right, title, interest, and estate, of whatever kind and nature of
said defendants, Weiant, Ottos, and Troxells, in and to said prem-
ises, to said Henry Northup, to hold, "for the same estate and
in the same manner as we Robert, Caroline, Lovinia, and
Sabina, only children and heirs at law of Peter Weiant deceased,
had and held the same," for the pretended consideration
of $80, was recorded in the recorder's ofiice of Adams county,
Illinois ; that on the 20th November, 1850, a certain other paper
purporting to be a deed from said Northup by his attorney, H. L.
Northup, who resides in Adams county, Illinois, to said
Ebert, for said premise^, was recorded in the recorder's ofiice of
said county of Adams.

On the 19th day of February, 1852, a pretended deed from
said Ebert to said Wheeler, for the south half of said prem-
ises, was recorded in the recorder's office of said county of
Adams, dated 21st June, 1852, long after the said deed from the
said Peter Weiant to said Stewart was recorded. Said Ebert is
in possession of the north, and said Wheeler of the south half of

DECEMBER TERM, 1853. 151

Kennedy et al. v. Nortliup et al.

said premises, and claims to hold the same under said pre-
tended deeds, from said Robert Weiant et als. to Northup,
Northup to Ebert, and Ebert to Wheeler, as innocent pur-
chasers, for a valuable consideration without notice of oratrixes'
title, and adversely to your oratrixes. Charges that Ebert and
Wheeler are not innocent purchasers ; that they had notice of
and well knew that said premises were owned by your oratrixes
in fee, by deed from said Peter Weiant to Stewart, and Stew-
art to Kennedy, and by descent to them ; that they had nego-
tiated with your oratrixes' guardian, and also said agents for
the purchase thereof, and by whom they were informed of your
oratrixes' title, and that their said pretended purchase and claim
is fraudulent and void as to your oratrixes. Charge that said
R. Weiant, Ottos, and Troxell, never had any right, title or
interest in said premises, and that said Northup obtained no
title thereto by said pretended deed from them. Death and
heirship of Peter Weiant not known, but charges that if dead
he did not die seized of said premises, and Avhoever his heirs
are, they never had any interest in said premises, and could
convey no interest therein to any third person ; that said pre-
tended deed as to such heirs, does not purport to convey title, but
to be a simple deed of release, and a purchaser and those under
him are bound to take notice of all equities or titles, equitable
or legal, and are not protected against ; that said deeds to
said Northup, Ebert, and Wheeler, are a cloud on the title of
your oratrixes, and are fraudulent, prayer that they may be
set aside ; that said Ebert, knowing your oratrixes' title, fraudu-
lently procured Northup to find Peter Weiant, if living, and if
dead, his heirs, and get a deed of said premises to himself, and
have it recorded before your oratrixes' said deed from Peter
W^eiant to Stewart should be recorded, thereb}'- to defeat your
oratrixes' title ; that Northup did, in pursuance thereof, procure
said deed from R. Weiant et als. to himself, and made said
deed to said Ebert, and charge both deeds to be fraudulent and
void as to your oratrixes. Said Northup knowing your ora-
trixes' title aforesaid, fraudulently combined with Ebert to pro-
cure, and with said R. Weiant and others to make, said deed
to Northup, well knowing that they had no interest in said
premises, and spread the same of record with the fraudulent
purpose of defeating your oratrixes' said title, each of them
knowing of said unrecorded deed of said P. Weiant to Stewart,
and your oratrixes' claim under the same. Charges knowledge
by R. Weiant and others, grantors, and Northup, grantee of the
said deed from P. Weiant to Stewart, and fraudulent combina-
tions, and making deed to Northup to defeat the same ; that

152 SPRINGFIELD.

Kennedy et al. v. Northup et al .

said premises during all the year 1850, was worth six hundred
dollars ; that said Ebert for years prior to 1850 had had actual
possession of a part of said premises by inclosure thereof, and
constructive possession of the balance by cutting wood, poles, &c.,
and keeping others off, claiming under your oratrixes, and that
his possession was as their agent and tenant, and was notice of
their title thereto ; that said Northup, Ebert, and Wheeler, had
notice of your oratrixes' title, and are not innocent purchasers for
a valuable consideration without notice.

Prayer, that said deeds to Northup, Eber, and Wheeler be set
aside for fraud, also for general relief,

Oct. 31, 1853. Demurrer of Northup, Ebert, and Wheeler,
filed by Williams and Lawrence, solicitors. Joinder by complain-
ants' solicitors. Decree pro corifisso as to the others.

Nov. 1, 1853. Demurrer sustained, and bill dismissed abso-
lutely as to Northup, Ebert, and Wheeler. Judgments for costs
and award of execution. Complainants prayed an appeal,
which was allowed, and appeal bond filed. And the appellants
assigned for error : That the court erred in sustaining the de-
murrer to the complainant's bill, and dismissing said bill and
rendering a decree against the complainants for costs ; that
the court erred in sustaining said demurrer of said Northup,
Ebert, and Wheeler, and dismissing said complainants' bill ab-
solutely ; that the court erred in dismissing said bill of com-
plaint absolutely, when it should have been done, if at all, without
prejudice.

Warren and Edmunds, for appellants.

Williams and Lawrence, for appellees.

Caton, J. The first question which properly arises in this
case, is that of jurisdiction. The bill is filed for the purpose of
setting aside certain deeds held by the defendants which it is
alleged were fraudulently obtained, and Avhich remain as a
cloud upon the complainants' title. It is objected that the
defendants are in possession, which enables the plaintiffs to
bring ejectment, and thus contest the fraudulent deeds in a
court of law, and that hence a court of equity will not as-
sume jurisdiction to try the validity of those deeds and set them
aside. In support of this position the case of The Insurance
Co. V. Buckmaster, 13 111, 201, (a) is relied upon. In that case
this court held that a bill would not be entertained for the pur-
pose of setting aside a conveyance which was a cloud upon the
title of the real owner, where the latter was in a position to bring

{a) See notes to that case.

DECEMBER TERM, 1853. 153

Kennedy et al. v. Northup et al.

an action at law to try the sufficiency of the title sought to be
set aside. We are still of opinion that the decisioQ in that
case was correct, where the question of jurisdiction depends
upon the fact alone, of an outstanding title which is com-
plained of as a cloud upon the complainants' title. Where the
simple question is as to which is the better legal title, the party
should go to a court of law, if he is in a position to bring both
titles before that tribunal. In the case referred to, the com-
plainants claimed title, first, under a decree foreclosing a mort-
gage, and second, under certain tax titles, and the defendant
claimed under a title acquired at a sheriff's sale upon an execu-
tion at law ; and the question sought to be raised was, which
was the better legal title, and as the complainants had it in
their power to bring an action at law which would compel the
defendant in that action to set up Buckmaster's title, it was
held they should be compelled to do so, and should not be
allowed, in the first instance, to bring a suit in equity to try its
validity. There was no question of fraud in the case, nor
other circumstance rendering it proper to resort to chancery in
the first instance. Here, however, the case is very different.
The very gist of the complaint is that the title, under which the
defendants claim, was obtained by fraud ; and if the fraud can-
not be established, the defendants' title must prevail. While a
court of equity will not take jurisdiction of every case of fraud
•which may be presented, yet there are few questions over which
its jurisdiction is more universal, and especially so when it
relates to the transfer of real estate. The books are full of
cases presented in every conceivable form in which courts of
equity have assumed jurisdiction, and set aside conveyances
fraudulently obtained. Perhaps in no form has the question
more frequently arisen and been decided, than upon applica-
tions to set aside conveyance fraudulently obtained, and which
created a suspicion of the validity of the title of the real
owner. Briggs v. French, 1 Sumn. 504, was a case of that
kind, and in answer to the objection to the want of jurisdiction,
Story, J., said, *'but a court of equity has a clear concurrent
jurisdiction with courts of law in cases of fraud. And in the
case of Massie v. Watts, 6 Cranch, 158, where the object «f the
■suit was to prevent the defendant from making a fraudulent
conveyance of land lying in another State, Marshall, C. J., said,
*' This court is of opinion that in a case of fraud, of trust, or of
-contract, the jurisdiction of a court of equity is sustainable
•wherever the person be found, although lands not within the
jurisdiction of the court may be affected by the decree. The
.power of the court to set aside conveyances or other documents

154 SPRINGFIELD.

Kennedy et al. v. Northup et al.

■whicli, while outsanding, endanger or threaten the rights of
others, was extensively examined in the case of Hamilton v.
Cummings, 1 John C. R. 553, by Chancellor Kent, who thus
concludes his researches: "Perhaps the cases may all be recon-
ciled on the general principle, that the exercise of this power is
to be regulated by sound discretion, as the circumstances of the
individual case may dictate." It may be well here to remark,
that the jurisdiction of a court of equity is not bounded by a
fixed and arbitrary line, up to which the court must go when-
ever called upon, and beyond which it can never proceed. Cases
are constantly arising in which the court may refuse to act, and
yet in deciding which, it would not usurp a power not legally
possessed. Cases of fraud even, may frequently arise of which
it may, in the exercise of a sound discretion, refuse to take
jurisdiction, and yet the cases are very rare ii)deed, where it may
not, if it choose, interpose and set aside the fraudulent act.
The soundness of Chancellor Kent's suggestion on this subject
cannot at this day be well questioned, and it is the undoubted
duty as well as right of a court of equity, to determine from
the circumstances of the case, as bearing upon the rights of the
respective parties, whether it is proper for the court to assume
jurisdiction or not.

In the case before us, we think the complainant has a right
to have the defendants' title set aside, if, as is alleged, it was
acquired with a full knowledge of the complainants' title, and
with the fraudulent purpose of supplanting and defeating it ;
although it may be true that the fraud, if proved, might defeat
that title in a court of law, yet the courts of equity have ever
claimed to possess superior facilities for investigating such
questions, to the courts of law, and certainly the relief which
they can give is, in many cases, more satisfactory. When the
fraud is once established, they can cut up the fraudulent con-
veyance or contract by the very roots, and leave the party jn as
secure a position as if it had never existed. This, especially as
to conveyances of land, can only be done indirectly, and after
repeated trials by the courts of common law.

There is another question in this case which requires consid-
eration, and upon which I have not arrived at a conclusion
without hesitation and doubt. The complainant claims title
under a deed from the patentee to Stewart, which was executed
in 1818, but which was not recorded till 1850. After the execu-
tion of that deed, and before it was recorded, Weiant, the
patentee, died, and his heirs executed the conveyance of the
premises to Northup, and which was recorded before the deed
from the patentee to Stewart was placed on record. Under

DECEMBER TERM, 1853. 155

Kennedy et al. v. Northup et al.

this deed from the lieirs of the first grantor to Northup, the
defendant claims title ; and the question is, which of these deeds
shall prevail. This depends upon the construction to be given
to our recording laws. The statute provides as follows: " All
deeds, mortgages, and other instruments of writing which are
required to be recorded, shall take effect and be in force from
and after the time of filing the same for record, and not before,
as to all creditors and subsequent purchasers without notice ;
and all such deeds and title papers shall be adjudged void as to
all such creditors and subsequent purchasers without notice,
until the same shall be filed for record." Purchasers from whom,
and whose creditors, are here meant ? The complainant con-
tends that only purchasers or creditors of the grantor of the
unrecorded deed are meant ; and in support of his position he
cites several decisions from Kentucky. The first is that of
Rolls V. Graham, 4 Mon. 120, where the court held, under a
statute almost precisely like ours, that an unrecorded deed
should take precedence of a recorded conveyance from the
devisee of the grantor in the unrecorded deed. They put it
upon the ground that the statute only makes void unrecorded
deeds as to subsequent purchasers from the same grantor, and
not from his heirs or devisees. Again, in the case of Hancock
V. Reverly, 6 B. Monroe, 531, the same construction was given
to the statute, and applied to a deed from the heir of the grantor
in the unrecorded deed. In this case the court concede that the
question as an original one is doubtful, and place their decision
upon the authority in 4 Monroe.

A different construction was, however, given to a similar
statute in Tennessee, in the case of McCulloch v. Eudaly, 3
Yerger, 346. The reason assigned for that decioion, however,
cannot certainly be sustained, for they place it upon the ground
that the fee remained in the grantor in the first deed, till that
should be recorded, which not having been done, the legal title
descended to the heir. Noav it is everywhere else decided that
the legal title does pass by the deed alone, although it may
never be recorded, while, by force of the recording laws, that
deed may be postponed in favor of a subsequent one to a bo7ia
fide purchaser which is recorded.

In the case of Powers v. McFarren, 2 Serg. & Raw. 41, the
supreme court of Pennsylvania held, under a statute like ours,
that a deed from the heir should prevail over the unrecorded
deed from the ancestor, and they place it upon the broad ground
that the expression " subsequent purchasers " means subsequent
purchasers from the heir, as well as from the original grantor
himself. After much reflection, I am satisfied that this is the

156 SPRINGFIELD.

Kennedy et cU. v. Northup et al.

true and proper construction of the statute. It meets the
objects designed to be accomplished by the law, and is within the
reason which gave rise to the enactment. It was the object of
the legislature to make potent the titles to real estate, that pur-
chasers might know what title they were acquiring. Where a
deed is not recorded, the title is apparently still in the grantor,
and the law authorizes purchasers who are ignorant of the con-
veyance, to deal with him as the real owner. In case of his
death, the heir becomes the apparent owner of the legal title ;
and it is equally important, and equally as just, that the public
may be allowed to deal with him as with the original grantor, if
living. This, it is true, cannot with propriety be always per-
mitted Avithout cutting off devisees, and perhaps creditors. A
will may be valid and convey the legal title to the devisee,
although it may not be probated and recorded, or even known to
exist for a long time, but when discovered the devisee may
assert his legal title under it, to the exclusion of the grantee of
the heir, who was the apparent legal owner, and so may credi-
tors assert their claims within a certain time, and whoever pur-
chases of the heir must take his conveyance subject to be thus
defeated. This is no doubt an evil which, were it practicable
and compatible with justice, it would be desirable to remedy.
But because the statute could not be framed, or cannot be so
construed as to meet every contingency, it is no reason why it
may not accomplish the object of its enactment as far as that
may be justly done. There is as much justice in protecting the
purchaser from the heir, as from the ancestor ; and because this
may not be done in every case, it is no reason Avhy it shall not
in any. It is true, that neither the heir nor devisee could hold
the title against the unrecorded deed, nor could the grantee in a
voluntary deed. And yet the grantee in a subsequent convey-
ance may hold the title, if he purchases in good faith, and for a
valuable consideration, and his deed is first recorded ; so that
the fact that the apparent legal owner may not hold against the
unrecorded deed, does not prove that he may not convey to
another who may hold against such deed. A bona fide grantee
from a fraudulent purchaser may acquire a good title, as well as
a bona fide grantee from a fraudulent purchaser. When the
title once vests in, or passes through meritorious hands, it
becomes purified, and is as valid and effectual as if it had never
been exceptionable. Although the heir himself might not prevail
against this unrecorded deed, it does not folloAV that he may not
convey to one who may prevail.

This construction, too, is equally within the literal expres-
sions of the statute. The expression is, subsequent purchasers,

DECEMBER TERM, 1853. 157

Kennedy et al. v. Northup et al.

but it does not say purchasers from whom. That is left to con-
struction. Some word must be supplied by intendment or con-
struction, not for the purpose of extending the language in order
to eifectuate the objects of the law but for the purpose of limiting
the language so that it shall not go beyond the intent of the stat-
ute. The language itself does not limit the application to pur-
chasers from one person more than another ; but the manifest
object of the law does limit it so as to exclude from its protection
those who might purchase from strangers. Without a limitation
to at least that extent, the law would become simply absurd. Now
the question is shall we carry this restriction so far as to exclude
all except purchasers from the first grantor ? To prescribe the
extent of the limitation to be thus introduced into the act by con-
struction we must look to the object of the act, the mischief to
be prevented and the protection or relief designed to be afforded
to those for whose benefit the law was passed. We have already
seen that these considerations apply as forcibly to purchasers from
heirs or devisees as to purchasers from the ancestor. During the
lifetime of the grantor in an unrecorded deed, the apparent title
is in him ; and he who purchases in good faith that apparent title,
it is conceded on all hands, is protected by the statute. After
the death of such original grantor the apparent legal title is in
the heir, and the policy of the law, which is to make potent all
legal titles to land so far as practicable, that strangers may safely
purchase, equally requires that the bona fide purchaser from the
heir should be protected. By the fault of some one the land
has been twice sold, from which some one must suffer ; and is it
not right, is it not in harmony with every principle of law, that
he who is in fault, in not notifying the world by recording his
deed, shall suffer the loss which has resulted from such negli-
gence ? If, then, we look at the objects and policy of the law
for the purpose of determining how far we shall allow the general
words of the laAv to have effect, and how far we shall restrain
them, we cannot find the warrant for saying they shall be so re-
strained as to exclude purchasers from the heir any more than one
Avho purchased from the original grantor. I am of opinion that
the conveyance from the heirs, if bona fide ^ must hold the land.

The decree must be reversed, and the suit remanded.

Decree reversed.

ScATES, Justice, dissented.

(rt) Rupert et al. r. Mark, post 541.

158 SPRINGFIELD.

Burke v. Smith et al.

Beatty T. Burke, appellant, z^. David A. Smith f/ a/., appellees,
EEROR TO MACOUPIN.

A supplemental bill cannot be filed after a decree of dismissal of the bill
to which it is a supplement.

Where leave was given by the court to file an amended and supple-
mental bill in a case which had been dismissed, and afterwards the
court on motion dismissed such amended and supplemental bill : — Held,
that such dismissal was proper.

Matters which occurred prior to the filing of the original bill, and
not stated therein, should be brought into the suit by amendment.

Matters which have occurred since the filing of the bill, should be
brought in by supplemental bill.(''0

This suit was tried before Woodson, Judge, at May term,
1853, of the Macoupin Circuit Court.

The opinion contains a statement oi: the case.

D. A. Smith, for appellant.
J. M. P.iLMER, for appellees.

Caton, J. The original bill in this suit was filed to enforce
the specific performance of an agreement for the sale of land.
The respondent pleaded the statute of frauds, whereupon the
complainant dismissed that bill, and afterwards, by leave of the
court, filed a supplemental bill for the purpose of recovering back
purchase-money which he had paid upon the parol agreement for
the purchase of the land. One of the defendants in the supple-
mental bill filed a cross -bill to the use of the complainant in
the supplemental bill, against the other defendants. To this
there was a demurrer. Subsequently, the complainant, by leave
of the court, filed an "amended and supplemental bill." Finally,
a motion was made to dismiss the supplemental bill and amended
supplemental bill, which motion was sustained by the court, and
this is assigned for error.

The circuit court, in the first instance, mistook the practice in
allowing these supplemental bills to be filed, but at last decided
very properly in dismissing the Avhole proceeding. When the
original bill for a specific performance was dismissed, that suit
was ended. There was no bill pending to which a supple-
mental bill could be filed. If the party was entitled to any

{<() Mix T. Beach, 46 111. R. 311.

DECEMBER TERM, 1853. 159

Ralston et al. v. Wood.

equitable relief, he should have sought it by an original bill.
It is difficult to conceive what object the complainant had in
filing a supplemental, instead of: an original bill, unless it was
the consciousness that a court ot law was the proper forum to
grant the relief sought by the supplemental bill, and a design
to support the jurisdiction of a court of equity, upon the ground
that the court, having the subject-matter before it, would go on
and do complete justice between the parties. But this attempt
to give the court jurisdiction can be sustained by no recognized
principle of chancery practice. Even if • the relief sought was
properly within the province of a court of equity, it was not the
proper subject for a supplemental bill. If brought into the suit
at all, it should have been by an amendment to the original bill.
A supplemental bill is proper where new matter has arisen since
the filing of the original bill ; but Avhere matter which existed
at the time the original bill was filed is to be brought in, it
should be by an amendment. The leave to file the supplemen-
tal bill was improvidently granted, and the whole matter was pro-
perly disposed of by dismissal. The dismissal will not prevent
the complainant from bringing an action at law, to recover back
the purchase-money.

The decree of the circuit court must be affirmed.

Decree affirmed.

James M. Ralston et al.., appellants, v. John Wood,
appellee.

APPEAL FROM ADAMS.

An order of a probate court against an administrator, ordering him to
pay over money in his liaudsto an heir, is conclusive ; and if not com-
plied with, entitles the person in whose ftivor it is made, to recover
upon the administrator's bond against principal and security. And
the suit upon the bond is a collateral action, founded as well upon the
judgment as upon the bond ; and when that judgment is oifered in evi-
dence, it cannot be inquired into except for fraud. The security, al-
though not a party to the first proceeding, is bound by it.

If the "security thinks a judgment of the probate court is unjust, an
appeal to the circuit court is his proper remedj^.

In 1847 an order of the probate court was made, directing an adminis-
trator to pay over money to the heir; in 184'4 tlie administrator, being
also guardian to the heir, was ordered, as guardian, to paj' over an-
other sum to the same heir ; one of the securities wlio was upon both
bonds, was sued, and made to pay for the defiult of the administrator ;
he afterwards sued the heirsof his co-security for contribution : — Held.,

160 SPRINGFIELD.

Ralston et al. v. Wood.

that it was too late in the suit for contribution, for the heirs of the co-
security to make an objection, that the orders against the administra-
tor and the guardian, to pay to the heir, directed him to pay the same
sum, in the different capacities in which he acted.
Where one person is obligated to pay money for the use of another, a
payment in property or securities, if received as a full satisfaction, is
good.

This cause was heard before Walker, Judge, at June term,
1853, of the Adams Circuit Court.

This was a suit in chancery brought by the defendant Wood
against the legal representatives of his co-securities upon the
administration bond of Daniel G. Whitney, as administrator of
Nathaniel Pease, deceased, to recover contribution for moneys
paid by him as such security, as he insists, to one of the heirs of
said deceased.

Wood alleges in his bill substantially, that on the 21st of
September, 1836, Daniel G. Whitney and Jacob Perkins were,
by the probate court of Adams county, Illinois, appointed ad-
ministrators of said deceased, and executed a bond as such,
(which is in the statutory form), in the penalty of $30,000,
with himself, Samuel Alexander, Joseph T. Holmes, and Joseph
Milnor Higbee, as securities thereon ; that Pease being a resi-
dent of said county, died intestate in July, 1836, leaving three
children his sole heirs at law, and a large estate both real and
personal ; that Whitney was the sole acting administrator, and
received assets of the estate of said deceased, to a large amount,
exceeding the liabilities of said estate, and belonging to the
heirs of said deceased ; that on the 17th of May, 1847, he
exhibited his account in said probate court for a final settlement
of his said administration ; that by said account it appeared
there was due and owing from him to Nathaniel Pease, Jr.,
son and one of the heirs of deceased, on account of his distribu-
tive share in said estate, $5,870.14 ; that said account was allow-
ed ; that said sum was adjudged against said Whitney as admin-
istrator as aforesaid, and in favor of said Pease, Jr., as such
heir as aforesaid, and that said Whitney was forthwith ordered
to pay the same.

That Whitney having neglected to pay said money, though
demanded, said Pease, Jr., caused a suit to be brought upon said
administrator's bond for his use against said Wood as surety
thereon, in the circuit court of said county, to recover said sum,
in March, 1848, and that on the 14th of June, 1848, he recov-
ered a judgment therein against said Wood for the penalty and
$6,248.39 damages, and costs of suit amounting to $14.50 ; and
that on the 9th of August, 1848, said Wood paid said Pease
$6,317.75 in satisfaction of said judgment.

DECEMBER TERM, 1853. 161

Ralston et al. v. Wood.

Wood further alleges, that said Whitney and Perkins were
both insolvent ; that said Holmes and Higbee had both died
insolvent ; and that in December, 1836, said Alexander died
intestate, leaving as his sole heirs at law his children Jane S.
Ralston, wife of James H. Ralston, Jacob S. Alexander, Perry
Alexander, Sally Ann Johnston, wife of Frederick G. Johnston,
Esther L. Alexander, and Mary Elizabeth Alexander, and also
valuable real estate which descended to them ; that said Jane
had died, leaving as her sole heir Elizabeth Jane Ralston, then
and still an infant, her daughter by said James, and that she
inherited the interest of her mother, subject to the rights of said
James as husband, in the estate of said Samuel Alexander.

Said Whitney and Perkins, and the heirs and personal repre-
sentative of said Holmes, Higbee, and Alexander are made de-
fendants to the bill.

The bill prays for contribution from the defendants according
to their ability to pay out of property inherited by them from
their respective ancestors ; and that the amount for which the
said heirs of said Alexander be liable, be made a charge upon
the lands inherited by them.

The record shows, that after the bill was filed and before
hearing, the said Jacob S. Alexander died intestate, leaving his
brother and sisters and said Elizabeth Jane Ralston his sole
heirs ; that they inherited his interest in the estate of said Sam-
uel ; that said Esther married George Summers, who had also
died, and that said Mary married Alonzo M. Swartwout, and
died leaving an infant child, Alexander C. Swartwout, by her said
husband and who inherited her interest in her father's estate ;
said Summers and Swartwouts were made defendants to the
suit.

Perkins, and the representatives of Samuel Alexander, an-
swered the bill.

The answer of Alonzo M. Swartwout (and the others are sub-
stantially like it, and therefore unnecessary to be noticed), after
admitting the appointment of Whitney as administrator of Pease.
his sole administration of said estate, and the receipt by him of a
large amount of assets belonging to said estate as alleged in the
bill ; alleges, in substance, that on the 6th of May, 1837, said
Whitney was, by the aforesaid probate court, duly appointed
guardian of said Nathaniel Pease, Jr., one of the heirs of his
intestate, and executed a bond as such (which is in the statutory
form) in the penalty of $40,000, with said Wood and Higbee,
and one James B. Mathews, his securities therein ; that said
Whitney, at the time of his said appointment as guardian, having
in his hands a large amount of funds received from said assets, to

162 SPRINGFIELD.

Ralston et al. v. Wood.

•vvhicli his ward was entitled on account of his distributive share
in said estate, retained the same as such guardian, and from
time to time thereafter received other like funds, and made like
retainer of the same ; that said Whitney, prior to January, 1840,
had, as adrainstrator, received from said assets and as guardian
retained for his ward, $7,646.98, to which his ward was entitled,
the same being the one- third of what he had received from
said assets over and above paying the debts of said estate and
the costs of administering, and had also as such guardian re-
ceived $1,584.61, as interest on the money thus retained ; that
on the 1st of January, 1840, there was a balance against him as
guardian in favor of his ward of $8,158.80, on account of the
money thus retained by him, and interest thereon ; that on the
30th of October, 1840, said Whitney, as guardian as aforesaid,
for the purpose of rendering an account to said probate court of
his guardianship, filed an account in said court, showing the
amount received and paid out by him as such guardian prior to
January 1, 1840, from which it appeared there was a balance
against him of the sum last above named, and that said account
was duly approved and allowed by said court ; that said Whit-
ney, had, prior to January, 1840, fully administered said estate
and paid ofi' all the debts of the same and the costs of adminis-
tration, and had also paid .the other heirs of his intestate their
distributive share in the assets of said estate ; that at the time
he was appointed administrator as aforesaid, he was solvent
and well able to pay all of his liabilities, and so continued until
long after the filing of said guardian account.

Said answer further alleges that said Pease, Jr., had arrived
at full age on the 10th of January, 1844, and that on the 26th
of October, 1844, said Whitney, for the purpose of making a
final settlement of his guardianship, filed another account as
such guardian, in said probate court, having been previously
ordered and cited by said court, on the petition of said Pease.
to make a final settlement as such guardian, whereby it ap-
peared he, as guardian, was then indebted to his ward $6,915.74.
That said account embraced the same moneys specified in the
account first above mentioned, and all of the distributive shares
of the said Pease in the assets belonging to the estate of his
father, the same having been retained by said Whitney as guar-
dian as aforesaid ; and that the same was on the same day last
above named, duly approved and allowed by said court ; thac
said Whitney was then at the instance of said Pease, ordered by
said court forthwith to pay the said sum last above named, to
said Pease, he and the said Whitney being then present. That
said order was for the balance appearing from said account to

DECEMBER TERM, 1853. 168

Ralstou etal. v. Wood.

be due from said Whitney as guardian, to his said ward, and
embraced all for which said Whitney was liable to said Pease,
■on any account whatever, and that the same still remains in full
force.

Said answer denies that Whitney was indebted to Pease in
any sura whatever, as administrator, on the 17th of May,
1847, or that he then had any assets in his hands as such adminis-
trator, to which said Pease was entitled, and charges that he had
then fully administered said estate ; that the money specified in
said order of the 17th of May, 1847, had been retained by him
as guardian as aforesaid, and was embraced in said order of 26th
-of October, 1844. That in pursuance of a fraudulent agree-
ment between him and said Wood with the intent to defraud the
representatives of said Samuel Alexander, the said Whitney,
Higbec, and Mathews being then insolvent, and with the knowl-
edge and consent of said Pease, he fraudulently and with the
intent aforesaid, filed said account as administrator, on said 17th
of May, 1847, and omitted therein to credit himself with the
moneys retained by him as guardian ns aforesaid, on account
whereof only said pretended balance of ^5,870.14 was made to
appear against him, and that in like manner and with the like
intent, he omitted to seek or ask for any credit on account of
such retaining but permitted, without objection, said order of
17th of May, 1847, to be made against him.

Said answer further charges that said last-mentioned account
and order, and all of the order and proceedings of said court
upon said account, are fraudulent and void as to the representa-
tives of Samuel Alexander.

Said answer further charges that said Wood fraudulently and
with the intent to defraud the representatives of said Samuel Alex-
ander, in the said suit against him, upon said administration
bond, omitted and failed to properly set up and insist upon the
aforesaid retainer, by said W^hitney, as guardian, the said order
of said 26th of October,1844, or the invalidity of said order of the
17th of May, 1847, but permitted said judgment to be recovered
against him and acquiesced in the same. And that said judg-
ment is fraudulent and void as against the representatives of said
Alexander.

Said answer denies any knowledge as to payment of said
judgment by Wood, but charges if the same was paid by him,
that such payment was fraudulent as to the representatives of
Alexander.

Said answer also denies that the estate ol Holmes was insol-
vent, but admits that Alexander died intestate, leaving the

164 SPRINGFIELD.

Ralston et al. v. Wood.

heirs in said bill named, and valuable real estate which descended
to them.

Replications were filed to all of the answers.

At the hearing, the certificate of evidence shows that Wood
proved the death'of Pease, intestate, leaving a large estate, and
three heirs, of whom said Pease, Jr., was one ; that Whitney
and Perkins were appointed his administrators, and executed a
bond as such ; the making by said probate court of said order
of 17th of May, 1847, and the rendering of the judgment against
him, all as alleged in the bill ; that he paid said judgment prin-
cipally by notes and a mortgage payable in future, with inter-
est ; that the heirs of Holmes inherited only $125 from him ;
that Perkins was insolvent, as also the estate of Higbee ; that
Whitney had been insolvent since 1845, during which year and
the two or three succeeding, judgments were entered in the
aforesaid circuit court against him, amounting to from $50,000
to $100,000 ; and that Alexander died leaving the heirs named
in the bill, and valuable real estate which descended to them.
Said certificate also shows that the defendants proved the
appointment of Whitney as guardian, his executing bond as
such, the filing of the accounts mentioned in the answer of
Swartwout by him as guardian, the petition of Pease for a
citation against him to make a final settlement as such guar-
dian, the order of said probate court thereon requiring him to
make such settlement, the issuing and service of a citation
thereon, and the making of said order of 26th of October, 1844 ;
all as mentioned in said answer. Said certificate also shows
the following parol proof : Nathaniel Pease swore that he was
a son and one of the heirs of Nathaniel Pease, on whose estate
Whitney was administrator ; that Whitney was appointed his
guardian by the probate court of said county. May 6th, 1837 ;
that said Wood and the aforesaid Higbee and Mathews were
the securities upon said guardian's bond ; that he became twenty-
one years of age January 10, 1844 ; that on the 26th of
October, 1844, Whitney was indebted to him, as his guardian,
$6,915.74 ; that he procured said order of that date ; that the
amount filed by Whitney as guardian, on that day, embraced
all of his distributive share in the personal estate of his father ;
that after Whitney was appointed his guardian, and previous
to said 26th of October, 1844, said Whitney paid to him and
for him, divers sums of money, as his guardian ; that he always
understood from Whitney, that as he received money fi'om the
estate of his father not needed for the payment of debts and
claims against the estate, he retained his share thereof as his
guardian; that said $6,915.74 was all that Whitney owed or

DECEMBER TERM, 1853. 165

Ralston et nl. v. Wood.

•was indebted to him on said 26th of Oct., 1844, upon any and
every account and in any capacity or character ; that on the
17th of May, 1847, the said Whitney was not, as administrator,
of the estate of his father, indebted to him in any sum whatever,
that he knew of ; and that all the money embraced in the order
of said court of probate in his favor and against said Whitney,
as administrator of the estate of his father, made on the 17th of
May, 1847, was embraced in the said order of said court of the
26th of Oct., 1844, and was part and parcel of the same money
specified therein, and of the interest which had accrued on the
same.

John Wheeler swore, that he married Rebecca Pease, a
daughter, and one of the heirs at law of Nathaniel Pease, said
Whitney's intestate, in December, 1837; that from and soon after
said marriage till 1849, he was well acquainted with said
Whitney ; that Whitney left the State at the period last named ;
that in the spring of 1838, Whitney paid ^him some money on
the distributive share of his wife in the personal estate of her
father ; that at that time Whitney inquired of him if he then
wanted all of the distributive share of his wife in said estate,
and added, that if he did not, but would let said distributive
share remain in his hands, he would pay him interest upon it
at the rate of twelve per cent, per annum, which was the usual
interest at that time, and portions of the principal from time to
time, as he should want it ; that it was then agreed between
him and Whitney, that the distributive share of his wife in said
estate, excepting what was then and had previously been paid,
should remain in Whitney's hands, and that Whitney should
pay him interest thereon at the rate of twelve per cent, per
annum, and portions of the principal as he should call on him
therefor ; that he let the unpaid portion of said distributive
share remain in said Whitney's hands, under said agreement ;
that Whitney from time to time thereafter, paid him upon it
divers sums of money as he called on him for that purpose ;
that his wife's share in said estate amounted to rising ^8,000 ;
that in 1842 he had a final settlement with Whitney, for the
first time, in relation to said distributive share, when Whitney
was indebted to him therefor, including principal and interest,
about $4,000, for which he took the notes of said Whitney ;
that in 1844 said notes remaining unpaid, were secured by
Whitney by a mortgage upon real estate, out of which the same
have since been collected ; that at the time he made said agree-
ment with Whitney he considered him good, and that by mak-
ing said agreement he released him from payment of his wife's
distributive share in the estate of her father, as administrator,
ILL. R. VOL. XV. 12

166 SPRINGFIELD.

Ralston et al. v. Wood.

and his securities on his administration bond from any liability
on account thereof ; that at the time he first became acquainted
Tvith said Whitney, he, said Whitney, was possessed of a large
amount of property and doing an apparently prosperous busi-
ness, and so continued until some time after he made said final
settlement with him ; that from the time he first became ac-
quainted Avith Whitney until shortly before his, said Whitney's
failure, his business and property continued to increase ; that
during the years 1839 and 1810 said Whitney was possessed of
property worth from $40,000 to $60,000 ; that said Whitney's
credit was perfectly good until after 1812, and that he failed in
the summer of 1811.

Hiram Rogers swore, that he married Mary P. Pease, a
daughter, and one of the heirs at law of. said Whitney's intes-
tate, in December, 1836 ; that the distributive share of his wife
in the estate of her father amounted to rising $8,000 ; that after
said marriage, Whitney from time to time paid him divers
sums of money upon said distributive share ; that in 1839 he had
a final settlement with Whitney as administrator of said estate,
when Whitney paid him the distributive share of his wife
therein in full, and also delivered to him, for the use and benefit
of the heirs of said deceased, the uncollected claims and de-
mands in favor o£ said estate, the most of which, however, were
not of any account, but were uncollectable, and that the dis-
tributive share of his wife in said estate, of which he has spoken
as such, Avas exclusive of said claims and demands so delivered
by said Whitney to him as above stated.

Ebenezer Moore SAVore, that he Avas Avell acquainted with
Whitney, from 1836 till 1819 ; that in 1839 and 1810, Whitney
Avas doing a large business, handled a good deal of money,
and Avas possessed of property worth from $10,000 to
$60,000, and that said Whitney's credit Avas always good
until after 1812.

On cross-examination by W^ood, he SAvore that in 1836, when
he first became acquainted with Whitney, he Avas estimated to be
Avorth about $10,000 ; that he Avas then doing a smaller
business than afterAvards ; that his business was much increased
after being appointed administrator of said Pease, and that in
about 1838, he built a dAvelling-house, which, Avith the furniture,
cost, as Avitness supposed, some $16,000.

Henry Root, George M. BroAvn and Samuel Holmes SAvore,
the first tAvo, that they became well acquainted with Whitney
in 1839, and the last, that he became Avell acquainted with him
in 1834 or 1835, and all, that they continued to be well
acquainted Avith him till 1849 ; that in 1839 and in 1810, he was

DECEMBER TERM, 1853. 107

Ralston et al. v. Wood.

doing a large and apparently properous business, handled a good
deal of money, was possessed of property worth, in the opinion
of the first two, from $40,000 to $60,000, and of the last, from
$50,000 to $75,000 ; and all swear that his credit was good
until after 1842.

It is admitted as a part of the evidence below, that Whitney
was the sole acting administrator of the estate of said Na-
thaniel Pease, deceased, and as such, attended exclusively to
the receipt, collection, and disbursements of the assets of said
estate, and that Perkins never received any of said assets ; that
Wood, on the 2d ot: October, 1844, took a mortgage from
Whitney to indemnify him against liability as security upon
said guardian's bond, but that the same was entirely unavailing
on account of previous incumbrances upon the property
mortgaged.

It is further admitted as a part of the evidence below, that
■shortly before said order of the probate court of 1847, said Pease
requested Whitney to file his account as administratrator, and
make a final settlement ; that Whitney proceeded so to do ; and
that after the filing of the account filed by him, on the 17th of
May, 1847, said order was made on the motion of the attorney
for said Pease.

On the 30th of June, 1853, the court below decreed that the
heirs of Holmes pay to Wood $12,500, and that said James H.
Ralston, Elizabeth Ralston, Perry Alexander, Sally Ann Johns-
ton, and Frederick G. Johnston her husband, Esther L. Sum-
mers, Alonzo M. Swartwout, and Alexander C. Swartwout,
pay said Wood, on or before the 1st of November, 1853,
$3,912.87, the same being one half the amount paid by Wood to
Pease, with interest thereon after deducting said $125.00, and in
default of such payment that certain real estate held by said repre-
sentatives of said Alexander, by descent from him as tenants in
common, remaining unsold and not partitioned, be sold by a special
commissioner appointed for that purpose, to satisfy the same. It
was, however, provided by said decree that the same should not
be held as a decree in jJ^rsonam^ against said representatives of
said Alexander, or binding upon them, jointly or severally,
further than relates to their joint and several estate and interest
in the lands decreed to be sold.

It was further decreed that in case the lands ordered to be sold
should not bring sufiicient to pay said $3,912.87, and interest
thereon and costs, and that fact appearing to the court, the court
should direct the sale of such other real estate described in the
bill, as should appear came to said heirs of Alexander by descent
from him.

168 SPRINGFIELD.

Ralston et al. v. Wood .

The court further decreed that Whitney pay to Wood the
one half of the amount paid by him to Pease, with interest, and
that the heirs of Alexander have leave, upon payment to
Wood, to move for a decree against Whitney for the amount paid
by them. No decree against Perkins or the representatives of
Higbee.

The defendants, James H. Ralston, Perry Alexander, Frederick
G. Johnston, and Sally Ann Johnston, his wife, Esther L. Sum-
mers, and Alonzo M. Swartwout, brought the case to this court
by appeal.

Several errors are assigned, but the main question in the case
is, whether or not the securities on the administration bond of
Whitney were liable to pay the distributive share of his ward in
the estate of his intestate.

Wheat and Grover, for appellants.

Williams and Lawrence, and Browninxj and Bushnell, for
appellee.

Caton, J. In September, 1836, Whitney was appointed
administrator of the estate of Pease, and gave a bond as such
administrator in the penalty of thirty thousand dollars, with the
complainant. Wood, and Alexander, the ancestor of the defendants,
and two others, who are insolvent, as his sureties. In May,
1817, Whitney exhibited his administration account to the pro-
bate court, from which it appeared there was due and owing fi'om
him as administrator to Nathaniel Pease, Jr., one of the heirs of
the intestate $5,870.14, which sum the administrator was
adjudged to pay to Pease as heir. Whitney having neglected to
pay the money, Pease instituted a suit upon the administration
bond, against Wood as surety, and in June, 1848, recovered a
judgment against Wood for $6,248.39 damages and costs. This
judgment Wood paid off, partly in money, and the balance by
giving to Pease his own notes, secured by mortgages on real
estate, upon which payment Pease entered satisfaction of the
judgment.

In May, 1837, Whitney was also appointed guardian of Na-
thaniel Pease, Jr., and as such, executed his bond in the usual
form, in the penalty of forty thousand dollars, with Wood and
two others as sureties.

In October, 1840, Whitney rendered an account of his guar-
dianship, from which it appeared that there was then a balance
against him, and in favor of his ward, of $8,158.80 of the
moneys which he had received as administrator, after the pay-

DECEMBER TERM, 1853. 169

Ralston et al. v. Wood .

ment of all debts against the estate. The ward attained his
majority in January, 1844, after which he cited the guardian
before the probate court, who, in obedience to such citation,
appeared before said court, and rendered an account of his
guardianship. The court then found and adjudged the guar-
dian to be indebted to the ward, in the sum of $6,915.74 ; and
the court adjudged the guardian to pay that amount to the
ward. The order made against Whitney, in 1847, as adminis-
trator and in favor of the heir, and the order made against him
in 1844, as guardian, and in favor of the ward, were for the
same moneys which had come to his hands as administrator, as a
part of the estate of the intestate, and which belonged to the heir
as a portion of his distributive share of the estate, after the pay-
ment of the debts.

This bill is filed by Wood against the heirs of Alexander, to
compel them to make contribution for the amount which Wood
has paid as co-security with Alexander, upon the administration
bond. The heirs resist this claim for contribution, upon the
ground, first, that although the money was received by Whit-
ney as administrator, yet it was retained by him as guardian,
he having been at the time both administrator and guardian,
and that Wood fraudulently sufi'ered the judgment to go against
him upon the administration bond, in order to compel contribu-
tion out of the estate of Whitney, all of his co-sureties upon the
guardian bond being insolvent. It is also alleged that the or-
der of the probate court made in 1847, against the administra-
tor, was fraudulently obtained for the same purpose. Second,
it is insisted that the notes and mortgage given by Wood to
Pease in satisfaction of the judgment, did not amount to a pay-
ment, for which he has a right to call upon a co-surety for con-
tribution. The charge of fraud is not, in our judgment, sus-
tained by any proof in the record. So far from Wood having
been guilty of a fraud in procuring the order of the probate
court against the administrator, in 1847, it does not appear that
he had any thing to do with that proceeding, or knew any thing
of it, either at that time, or subsequently, till the institution of
the suit upon the administration bond. And so far as we may
judge from the record of that suit, it seems to have been de-
fended with energy and in good faith. No fraud having been
proved, the question must be determined in the first place upon
effect to be given to the judgment of the probate court, entered
in 1847, against the administrator, ordering him to pay over
the money in his hands to the heir. That that judgment was
binding and conclusive upon the administrator himself, there can
be no doubt, for he was a direct party to it, and was before the

170 SPRINGFIELD.

Ralston et al. v. Wood.

court at the time, and the court had competent and indeed,
exclusive jurisdiction to pronounce that order or judgment.
The effect of that order upon the sureties of the administrator,
must depend upon our statute. Section 126 of our statute of
wills, provides, *•' If any executor or administrator shall fail or
refuse to pay over any moneys or dividends to any person en-
titled thereto, in pursuance of the order of the court of probate
lawfully made, within thirty days after demand made for such-
moneys or dividends," the executor or administrator may be at-
tached; "and moreover such failure or refusal on the part of
such executor or administrator, shall be deemed and taken in
law, to amount to a devastavit^ and an action upon such exec-
utor's or administrator's bond, and against his or their securities,
may be forthwith instituted and maintained, and the failure
aforesaid to pay such moneys or dividends, shall be a sufficient
breach to authorize a recovery thereon." If we are to give any
force to language, this statute certainly makes that order as
conclusive against the security, as against the administrator
himself. That judgment or order is made evidence of a devas-.
tavity if not complied with, and entitles the person in whose
favor it is made, to recover upon the bond against both princi-
pal and security, (a) The suit upon the bond is a collateral ac-
tion, founded as well upon that judgment as upon the bond itself,
and when the judgment is offered in evidence like any other judg-
ment of a court of competent jurisdiction, it cannot be inquired
into by those affected by it, except for fraud. Although Wood
was not a party directly to that proceeding, yet he was bound
by it, for the simple reason that he agreed to be bound by it
when he entered into the bond ; for the law said, if he entered
into the bond, he should be bound by it. This answers every
objection of hardship or injustice which might appear to exist,
by holding him concluded by a proceeding which he was not
notified to defend. By entering into the bond, he not only as-
sumed that the administrator should act with fidelity and discre-
tion in the management of the estate, but he also took the
responsibility that he should properly defend any proceeding
against him which might be instituted in the probate court.
The administrator might do or omit a thousand acts for which
the security would be liable, but of which he might be entirely
ignorant, or if known, he might be unable to control in the least
degree. The hardship in the one case, is no greater than in the
other. If he was not willing to take the responsibility of the
administrator's conduct and discretion to that extent, he should
not have become his security. While the security is bound by
the judgments of the probate court against his principal, if he

(a) Gilbert v. Greptill, 34 111. R. 140; McLauglin v. Bank of Potomac,
7 How. U. S. R. 229-30.

DECEMBER TERM, 1853. 171

Ralston et at. v. Wood.

thinks those judgments are unjust, he is, by the 188th section of
the same statute, allowed to to take an appeal to the circuit court.
And that was the remedy which should have been adopted by
the securities in this case, if they thought the order against the
administrator was not warranted by law. It is unnecessary to
say, in this collateral proceeding, whether the order made three
years before, directing Whitney to pay over to the infant this
same money as guardian, would have constituted a good defense
to the proceeding in 1847, against him as administrator.
That defense was not interposed, and the judgment is as con-
clusive, upon both the administrator and his securities, as if it
had never existed. It was too late for Wood^to make it, when
sued upon the bond, as the court then decided, and it Ls too
late now for the heirs of his co-security to make it, when they are
sued for contribution. If any doubt could be entertained as to
the true construction of our statute, the great number of
decisions in other States upon similar statutes, referred to upon
the argument, would settle it beyond controversy. But the
statute is too plain to require authority, or to admit of doubt.
The only remaining question is whether Wood has paid this
judgment in such a way, as to entitle him to call upon the heirs
of his co-security for contribution for the whole amount of that
judgment. That judgment was' for ^6,248.39 and costs. He
paid down in cash, $103.25, gave one note for $700.00, paya-
ble in April, 1849, and notes for the balance payable in eleven
equal annual installments, abundantly secured by mortgage
upon real estate, and which notes have been paid as they have
respectively fallen due. This was accepted by the judgment
creditor, as a full payment of: the judgment, and a receipt to that
effect was given, and satisfaction of the judgment entered of
record.

We consider it too well settled by authority, to admit of ques-
tion at this day, that where one person is obligated to pay money
for the use of another, a payment made in any mode, either
property, or negotiable paper, or securities, if such payment is
received as a full satisfaction of the demand, it is equivalent to,
and will be treated as a payment in cash.(<z) Upon this point,
a bare reference to a very few of the many authorities with which
the books abound, will be sufficient. Wetherby v. Mann, 11
John. 518 ; McMillan v. Crofton, 6 Greenleaf, 307 ; Randall
V. Rich, 11 Mass. 494 ; Pearson v. Parker, 3 N. H. 366 ;
Atkinson v. Stewart, 2 B. Monroe, 343. There are a few decis-
ions which would seem to conflict with this rule, but they are
overborne by such weight of authority, that the principle may be

{a) Gillilan v. Nixon, 26 111. R. 52 ; Cox v. Reed et al, 27 III. R. 438 ;
Wilkinson v. Stewart et al., 30 111. R. 58 ; Leake v. Brown, 43 111. R. 37G.

172 SPRINGFIELD.

Critzer v. McConnel.

considered as firmly settled. Where the payment is received as
a complete satisfaction, and the debt or obligation is extinguish-
ed, it is a matter of no moment to the person to whose use the
payment was made, whether it was made in money, property, or
obligations. The benefit to him is the same, and his obligation to
refund should be the same.

No other question being raised as to the correctness of this
decree, and these being decided in favor of the complainants, the
decree must be afiirmed.

Decree qffinned.

Otho D. Critzer, appellant, v. Murray McConnel,
appellee.

APPEAL FROM MORGAN.

If A pays money to B to be applied to a particular purpose, and B de-
livers the same money to C to be applied by C to tlie same purpose ;
if C misapplies the money, A may recover the money back from C in
an action for money had and received. (n)

This cause was heard before D. M. Woodson, Judge, without
the intervention of a jury, at March term, 1853, of the Morgan
Circuit Court. McConnel recovered judgment, and Critzer
appealed.

The facts of the case are stated in the opinion,

D. A. Smith, for appellant.

M. McConnel, in person.

Caton, J. The question in this case is one of fact rather
than of law. If the three hundred dollars which was paid to
Critzer by Bonesteel, was the money of McConnel, and was
misapplied by Critzer, there can be no doubt of the plaintiff's
right to recover, and that the finding of the circuit court was
proper. Was the evidence sufficient to justify the court in this
finding ? Bonesteel states that he got the money of McConnel,
to be used according to the terms of a receipt which he gave to
McConnel at the time, and a copy of which is attached to his
deposition. That receipt states that he had received the money

(a) McDonald v. Brown, 16 111. R. 32 and notes.

DECEMBER TERM, 1853. 173

Critzer v. McConnel.

of McConnel for the purpose of being used to purchase for
him, and in his name, a certain judgment specified, and in the
receipt, Bonesteel agreed to procure a transfer of the judgment
to McConnel in ten days, or to return the money — the judg-
ment to be by McConnel transferred to Bonesteel, at any time
within one year, upon his paying him three hundred and thirty-
six dollars therefor. We are satisfied that the receipt truly ex-
plains the character of the transaction between the parties ;
McConnel was to purchase the judgment with his own money,
and take an assignment to himself, and agreed to transfer it to
Bonesteel, at any time within a year, upon his paying him
three hundred and thirty-six dollars therefor. Bonesteel was to
negotiate the purchase for McConnel, and in case he could not
do so within ten days, he was to return the money. If this was
the true character of the transaction, it settles the question of
the ownership of the money at once. It was as much McCon-
nel's money while in the hands of Bonesteel for that specific
purpose, as if he had sent his clerk or any other agent to St.
Louis with the money to make the purchase. The fact that
there was an agreement that Bonesteel might purchase the
judgment for a certain sum, at any time within a year, did not
change or aflfect the ownership of the money in the least degree.
The money continued McConnel's as much as if he had em-
ployed an entire stranger to negotiate the purchase of the judg-
ment. We are satisfied that this money continued McConnel's.
Bonesteel, then, as the agent of McConnel, went to St. Louis
to purchase the judgment for him. There he met Critzer, gave
him the money and the assignment of the judgment to be exe-
cuted by Woods, Christie & Co., the owners of the judgment,
with instructions to purchase the judgment on the best terms
he could get the assignment executed, and return it to him.
This judgment was against Critzer himself, who, instead of
applying the money in good faith, according to McConnel's
instructions, by purchasing the judgment and procuring an
assignment, applied the money in payment and satisfaction of
the judgment. This was as much a misapplication of the
money as if he had applied it to any other purpose, entirely
foreign to the transaction. There can be no doubt that he is
liable for that misapplication of the funds, as for money had
and received. Nor would it make any difference if Bonesteel
had participated with him in this scheme to defraud McConnel
out of his money. He knew it was McConnel's money when
he received it, and was bound to apply it according to McCon-
nel's directions or to return it, even though Bonesteel had
directed him to misapply it, or had approved of the misapplica-

174 SPRINGFIELD.

Hunter v. Silvers.

tion afterwards. McConnel might, no doubt, hold Bonesteel
responsible, but that does not relieve Critzer from his liability.
McConnel might seek his remedy against which he chose.

We are satisfied the case was correctly decided by the circuit
court, and its judgment must be affirmed.

Judgment affirmed.

Chaeles W. Hunter, plaintiff in error, v. George H. Silvers,
defendant in error.

ERROR TO MADISON.

A bond, signed by one party only, executed at the same time with a
lease of premises for a year, which covenants that the lessee may
have the privilege of renewing the lease for five years, with a privi-
lege to him of purchasing the premises, &c., does not constitute a
present demise of the premises for the extended time, which can be
enforced in a court of law.

A party may, for a sufficient consideration, buy a right to lease or pur-
chase premises, which he can enforce.

This cause Avas heard before Underwood, Judge, at August
term, 1853, of the Madison Circuit Court.

This is an action of wilful detainer, brought by Hunter
against Silvers, to get possession of property in Alton. Before
the justice, a verdict was rendered for the defendant ; from
v/hich an appeal was taken to the Madison circuit court. In
that court a verdict was also rendered for the defendant,
Silvers ; from which last decision the plaintiff brings this suit
to this court. In the court below, the plaintiff, to sustain
the issue on his part, showed a notice, in writing, given
to Silvers on the 9th of April, 1853, requiring of him possession
of the property described in said notice, and being the same in
controversy. Also, two leases, which embrace the property,
made by Hunter to Silvers, and under which he. Silvers, took
possession ; by which leases the said Hunter leased said prop-
erty to Silvers for the term of one year from the first day of
April, 1852, with covenants that Silvers would deliver quiet
possession of the said property at the end of the term. Also,
evidence to prove that Silvers was in possession of the property
when he was served with the notice to surrender it, and that he
still remains in possession.

DECEMBER TERM, 1853. 175

Hunter v. Silvers.

It was proved by one Cooper, that Hunter had collected rent
from Silvers after the first day of April, 1853, by virtue of a
distress warrant, to the amount of between forty and sixty dol-
lars. There was also offered in evidence by the defendant Sil-
vers, which was objected to by plaintiff", but allowed by the court,
a bond made by Hunter in the penal sum of five thousand dol-
lars ; which bond recited : "That whereas he, Hunter, had, on
that day, made a lease of the hotel and garden at the corner of
Second and Walnut streets, in Hunter's addition to Alton, with
the stables and wagon yard inclosed in block No. 5, for the
period of one year from April 1st, with the privilege of renew-
ing the same, so as not to extend to more than five years from
April 1, 1853, at $350.00 a year; conditioned that on paying
$1,000 a year for six years, with six per cent, interest, that
Hunter would convey to Silvers the land described in the leases
referred to ; the first thousand dollars to be paid on the first of
April, 1853, with an additional amendment to the bond, that its
terms were not to destroy or nullify the leases of the property
between them, but that they were to stand and be fully com-
plied with.

W. Martin, for plaintiff" in error.

H. W. Billings, for defendant in error.

Caton, J. There is one important question in this case
upon which our decision must turn, and which demanded and
has received the most careful consideration of this court. That
question is, Avhether the bond which was introduced in evidence
by the defendant, created a demise under which he could hold
the premises afcer the expiration of the lease. The leases
introduced by the plaintiff" were in the ordinary form, and de-
mised the premises in question to the defendant for one year,
and contained covenants that the tenant should deliver posses-
sion at the end of the year. The defendant then introduced a
bond, dated the same day with the leases, the condition of
w^hich is as follows: "Whereas I have executed this day a
lease of the hotel and garden at the corner of Second and
Walnut streets, in Hunter's addition to Alton, together with
the stable and wagon yard inclosed in block No. 5, in said
addition, for the period ot one year from April 1, 1852, with
the privilege of renewing the snme, so as not to extend to more
than five years from April 1, 1853, at the annual rent of three
hundred and fifty dollars per year, and also the privilege of
purchasing," etc., specifying the terms on which he might

176 SPRINGFIELD.

Hunter v. Silvers.

purchase. This bond was signed by Hunter alone. Immediately
under his signature is appended the following : ^^A'bte. It is
agreed and understood by the parties to this agreement, that the
terms ofthe within bond does not, nor is it intended that it shall,
nullify or affect the leases of the property between the parties, but
that said lease shall stand and be fully complied with." This is
signed by both Hunter and Silvers.

All of these papers being executed at the same time, and re-
lating to the same subject-matter, must be held to constitute but
one contract. Nor is there any difficulty in understanding what
was that contract. It was an absolute demise of the premises
for one year, at a specified rent, with the right to the lessee to
have the lease renewed, at the end of the year, for five years
longer, with the right also of the lessee to purchase the premises
at certain specified terms, and with a covenant by the lessee that
he would deliver possession of the premises at the end of the
first year which would terminate the lease. I see no objection to
this right of renewal or right of purchase, for the want of a suffi-
cient consideration. Those rights were in law granted by the
same contract which granted the use and occupation of the
premises, and the covenant to pay the stipulated rent was a con-
sideration for the one as well as the other. The presumption
is, that Silvers would not have agreed to pay that rent if all these
rights had not been granted to him. A party may, for a suffi-
cient consideration, buy a refusal or right to lease or purchase
premises, as well as any other right, and when founded upon a
consideration he may enforce such right.

But the question here arises, Was there a present demise for
more than the one year ? Was there an actual lease for more
than the one term specified. The very statement of the contract
shows that there was not. There was a positive lease for one
year, with a right to the lessee to have another lease of the
same premises at the end of that year for a further term of
five years. If by that contract the premises were leased for the
five additional years, then the tenant by that contract agreed
absolutely to pay the rent for that additional term. This is not
pretended. He was only bound to take the premises and pay
the rent for the one year. Beyond that he assumed nothing.
An examination of all the cases relied upon by the defendant
will show that where an agreement for a lease has been held
to constitute a present demise, both parties have been bound
by the agreement, that the lease should be actually exe-
cuted. When both parties are thus bound, so that either could
enforce it, it has been held to constitute a present demise,
although the agreement may have contemplated the execution

DECEMBER TERM, 185B. 177

Hunter v. Silvers.

of a formal lease. Beyond this the authorities do not go. We
have met with no well considered case where the agreement has
left it optional with one party or the other to enforce the contract
and demand the execution of the lease or not, as he might
choose, where it has been held to constitute a present demise, and
entitle the party to insist upon it as such in a court of law. Fenny
V. Child, 1 Maule and Selwin, 262, is a very strong case of this
character. There was a lease for three years, with a covenant
for renewal toties quoties during twenty- one years, and in the
meantime and until such new leases should be executed, the lessee
should retain possession of the premises, and it was held that
this was only a lease for three years, and that after
that time the lessor could recover the possession in ejectment,
there not having been any fresh lease granted. That was cer-
tainly a much stronger case than this, for there was an express
covenant that the tenant might retain possession till the new lease
should be executed, and yet, as the tenant alone had the right to
insist upon the renewal, the agreement to renew would not be
treated as an actual renewal. There was no lease to compel the
tenant to pay rent and to confer upon him the legal right to the
possession.

In cases of this kind the party is not without his remedy, full
and complete. But he must see to it in a forum possessing the
necessary powers to grant it. He may apply to a court of equity
for a specific performance of the agreement and compel an exe-
cution of the lease, and, in the meantime, if he is likely to be
turned out of the possession in violence of the agreement, the
court may restrain the proceeding at law till the rights of the
parties are fully settled in equity. But now we are in a court of
law, which cannot look to the equities of the parties, but must
enforce their strict legal rights. The judgment must be reversed,
and the cause remanded, (a)

Judgment reversed.

{a) Fry on Sp. F. of Con. 405.

178 SPRINGFIELD.

Rawlings v. Bailey et al.

William Rawlings, appellant, v. John S. Bailey et al.,

appellees.

APPEAL FROM MORGAN.

In ejectment the declaration must specify the precise character of the
estate claimed, whether it be in fee, for life, or for years.

The verdict in ejectment must also be equally specific, and follow the
statute.

A guardian's deed is inoperative, unless the sale and conveyance has
been reported to and approved by the circuit ccurt. Such a deed
does not constitute such a claim and color of title made in good faith,
as is required by the limitation act of 1839.

This case is stated in the opinion. The cause was heard be-
fore Woodson, Judge, at October term, 1853, of the Morgan
Circuit Court.

D. A. Smith, for appellant.
M. McConnel, for appellees.

Caton, J. This was an action of ejectment, in "which the
plaintiff below declared for the west half of the southeast quarter
of section two, in township fourteen north, of range ten west of the
third principal meridian, containing seventy-seven acres. On the
trial the plaintiffs sho^yed a deed from the patentee for twentv-
five acres off of the south end of the tract to " the heirs of Alvah
Sweet," and proved that Alvah Sweet was dead and that the
plaintiffs were his heirs. The possession of the defendant was
then admitted, and the plaintiffs rested.

The defendant then produced an order of the circuit court of
Schuyler county, directing one Harvey, as guardian of the plain-
tiffs, to sell their interest in the land on the 20tli day of July,
1837, and that on that day Harvey sold said twenty-five acres
of land to one Joel Sweet, from whom the defendant derived
title. The guardian never made any report or return of his pro-
ceedings or sale under the order to the circuit court ; and no sub-
sequent order was ever made or action had by that court upon or
in reference to that sale. The defendants further proved that
Joel Sweet and those claiming under him had from the year 1837
up to the commencement of this suit (1852), been in the

DECEMBER TERM, 1853. 179

Rawlings v. Bailey et al.

actual possession of the premises by residence thereon. The
defendant here rested. The court found the defendant guilty,
and rendered judgment for the plaintiffs ; but without specifying
either in the judgment or the verdict, the estate in the prem-
ises to which the plaintiffs was entitled.

We are clearly of opinion that neither the declaration nor the
finding in this case entitled the plaintiffs to a judgment. Neither
specify the estate to which the plaintiffs Avere entitled in the
premises. The eighth section of our ejectment law first de-
clares what the declaration shall state when the suit is brousrht
to recover dower, and then proceeds : "In es^ery other case the
plaintiff shall state Avhether he claims in fee, or whether he
claims for his own life, or the life of another, or for a term of
years, specifying such life or the duration of such term." This
statute was under the consideration of this court in the case of
Ballance v. Rankin, 12 111. 420. After adverting to the pro-
visions of the statute, the court said: "The declaration apprises
the defendant of the precise character of the estate sought to
be recovered against him. If he finds he cannot successfully
resist the claim, he may let judgment pass by default, and thus
.save the expense and trouble of further litigation. Or if he chooses
to make a defense he has only to come prepared to meet and
resist a particular and not a general claim. But if the statute
is to be regarded as directory merely, and the plaintiff is not
bound by the averments in his declaration, those provisions will
become wholly inoperative, and cease to answer any useful or
practical purpose. The plaintiff will declare generally in all
cases, and a contest will be unavoidable whenever he is not
entitled to an estate in fee to the whole of the premises de-
scribed in the declaration." This declaration does not specify
what interest or title the plaintiff does claim on the premises,
Tvhile the statute declares that he shall specify such claim,
whether it be in fee for life, or years.

The findino; or verdict of the court was altocrether defective,
and did not authorize a judgment upon it. The seventh clause
of the twenty-fourth section provides that, "The verdict shall
also specify the estate which shall have been established on the
trial by the plaintiff in whose favor it shall have been rendered,
whether such estate be in fee, for his own life, or for the life of
another, stating such lives, or whether it be for a term of years,
specifying the duration of such term." This the verdict did not
do, and hence the court could not know from the verdict what
judgment to render, establishing the plaintiffs' title in the
premises, (a)

{n) Minkhart et vx. r. Hankler, 19 111. R. 48 ; Harding v. Strons:, 4'3 111.
R. 149 ; Murphy v. Orr, 32 111. R. 489.

180 SPRINGFIELD.

Byrne v. Stout.

We think the court decided properly in rejecting the evidence
of title set up under the guardian's deed. No return of that
sale and conveyance was ever made by the guardian to the cir-
cuit court, and no order was ever passed by that court approving
of and recording a return of the guardian. This precise ques-
tion was directly up and decided by this court in the case of
Young V. Keogh, 11 111. 642, where we held that " the approval
and recording of the return" vest in the purchaser the interest
of the ward in the premises, and without such approval and re-
cording of the return, no title passes by the deed. That deed
was inoperative and was properly rejected.

Nor, according to the case of Irving v. Brownell, 11 III. 402,
does this deed constitute such a "claim and color of title made
in good faith," as is required by the limitation law of 1839, to
protect the defendant in his possession. The court there said :
"By the words 'claim and color of title made in good faith,'
must therefore be understood such a title as tested by itself
would appear to be good — not a paramount title, capable of
resisting all others, but such an one as would authorize the
recovery of the land when unattacked, as no better title was
shown; that is, o. prima facie title." The guardian's deed did
not constitute a prima Jade title, as we have already seen. It
conveyed no more title than would the deed of a married
woman without any acknowledgment. Something else must
be shown to exist in connection with it in order to pass the
title ; so that it is unnecessary to inquire whether the defendant
had continued in the possession and paid the taxes, so as to
entitle him tO' the protection of that statute, if he held under a
sufficient title.

The decree of the circuit court must be reversed, and' the
cause remanded.

Judgment reversed.

Patrick 0. Byrne, plaintiff in error, t-. Andrew J. Stout,
defendant in error.

ERROR TO BOND.

Castrating a scrub hog running among other hogs, is not such proof of
a change of property, as to be evidence of a conversion or appropria-
tion of the hog by a party, to his own use.

This cause was heard before Underwood, Judge, at October
term, 1853, of the Bond Circuit Court.

DECEMBER TERM, 1853. 181

Byrne r. Stout.

The case is stated in the opinion of the court. The cause was,
by consent of parties, transferred to the supreme court to be held
in the second grand division, at Springfield.

J. &; D. Gillespie, for plaintiff in error.

A. Lincoln, for defendant in error.

ScATES, J. On the trial of an appeal in an action of trover
and conversion, the defendant recovered a judgment for three
dollars, and the refusal to grant a new trial is assigned for
error.

To prove the conversion of the property, the defendant proved
that he went to plaintiff's house, and the plaintiff not being at
home, he told his wife that he had come for his hog. She
answered that he had better not take the hog until her husband came
home. He saw the hog that day in the pen with plaintiff's fat-
ting hogs. He returned next day and demanded the hog, when
plaintiff answered, that he did not believe the hog was his.
Defendant's witness replied that it was defendant's, and he would
swear to it ; whereupon plaintiff told defendant to take the hog.
When they went to the pen, the hog was not in it. Plaintiff
told defendant, if he would wait an hour or so the hog would
come up and he could get him ; or if not, he would put him up
when he did come ; and if defendant would return in the morn-
ing, he could get him. When the hog came, plaintiff put him up,
and defendant not returning, plaintiff sent him word that the hog
was there, and he could get him ; defendant replied, that plain-
tiff might bring him himself, if he wanted him to take the hog ;
that he had a hold upon plaintiff ; that he intended to chastise
him ; that he would send plaintiff to the penitentiary, and would
make him pay for the hog. There was some further proofs for
defendant, that plaintiff had been heard hallooing to the dogs of
the witness, to worry the hog, and that afterwards the hog was
found dead. And this is in substance all the material evidence
for defendant, shown by the record. Upon this proof, we are of
opinion that the defendant wholly failed to show, either an unlaw-
ful taking, or an actual conversion. Castrating a scrub male
hog running among one's stock, is not such proof of a change
of property, as to be evidence of a conversion, or appropriation to
plaintifl^'s use. But when we examine the evidence offered in
defense, we are forced to the conclusion that plaintiff had been
trespassed upon by the hog for two or three years, and had
repeatedly tried without success, either to drive the hog away or
to keep him either in, or outside his corn fields, and other
ill. e. vol. XV. 13

182 SPRINGFIELD.

Kinney et al. v. Turner.

inclosures. That the hog had been unmarked and ownerless for
years ; and he had at last determined to fatten him for a tenant's
use, supposing him to have been left by a former tenant ;
defendant having disclaimed to plaintiff the ownership of the hog.
Yet when he did set up the claim, he at once consented to let him
take the hog. The proofs are so convincing to us, that there is
no room left for argument, or application of principles of law.
Every element of a conversion is wanting. There is neither an
unlawful taking, an actual conversion to the use of plaintiff,
or any other; nor is there a constructive conversion by refusal
to deliver up the hog upon demand. Besides, there are very
strong reasons, from the whole evidence, to doubt the defendant's
title to the hog. Judgment reversed, and cause remanded for
venire de novo.

Judgment reversed.

Benjamin Kinney et al., appellants, v. Avery Turner,

appellee.

APPEAL FROM ADAMS.

The pleader may set forth any number of facts and circumstances,
wliich, taken together, constitute but one cause of action or defense in
one count, plea, or replication.

In pleading a total failure of consideration, the pleader should set forth
every distinct element entering into the transaction, and then as dis-
tinctly aver a failure of each and all the parts of it.

Where A. agreed in consideration of a note, to convey to B. by deed of
warranty, the free, full, and exclusive right and privilege of using and
running, in a certain township. Page's portable saw-mill, in a suit upon
the note, failure of consideration having been pleaded, it was held not
to be erroneous to instruct the jury, "that an acceptance of a quitclaim
deed, instead of a deed of warranty, would be binding, if the jury be-
lieved from the evidence, that the party proceeded under the quitclaim
deed, to use and enjoy the right conveyed by it."

This cause was heard before O. C. Skinner, Judge, at March
term, 1852, of the Adams Circuit Court.

The fourth plea is a plea of total failure of consideration.
It sets forth, that at the giving of the note the plaintiff repre-
sented that he had the exclusive right to Page's portable saw-

DECEMBER TERM, 1853. 183

Kinney ci nl. v. Turner.

mill, and agreed to convey the same (that is, said exclusive
right), to defendants, by deed of warranty, in consideration of
which, defendant executed the note. The plea then avers that
said plaintiff did not convey said exclusive right, and that he
did not possess it. • The plea is demurred to, on the ground of
duplicity. The plaintiff's counsel say that the plea should have
been confined to the averment, either" that the plaintiff did not
convey by warranty deed, or that he had no title to the patent
right.

Williams and Lawrence, for appellants.
Browning and Bushnell, for appellee.

ScATES, J. The objection taken to the fourth plea in this
case, on special demurrer, was for duplicity. The plea alleged
the consideration of the note sued on, to be the agreement of
the defendant to convey by warranty deed to them, and two
others impleaded with them, the free, full, and exclusive right
and privilege, of using and running, in a certain township.
Page's portable saw-mill, which he represented to them that he
owned ; and that the consideration wholly failed in this, that
he had no title or right to the exclusive use of said saw-mill
in said township, and did not convey the same to them by war-
ranty deed.

We are of opinion the court erred in sustaining the demurrer
to this plea, for duplicity.

The pleader may set forth any number of facts and circum-
stances, which, taken together, constitute but one cause of
action or defense, in one count, plea, or replication. Stephen
on PI. 263. And by parity, so he may, even must, in averring
the consideration, truly set forth every fact, circumstance, or
inducement, which entered into and formed a part of it, other-
wise, instead of showing the whole, he would only show a part ;
and being confined in his proofs by his allegations, he must fail.
So in pleading a total failure of consideration, he must set forth
every distinct element entering into it — and then as distinctly
aver a failure of each and all the parts of it — else the plea would
be bad, as a plea of total failure. A good illustration is found
in the case of Sullivan v. DoUins, 13 111. R. 85, where the con-
sideration consisted of several distinct matters. The difiiculty
in this case, we presume, arises from the character and nature
of the defense of a total failure of consideration — where every
thing which formed part, must be shown, to exhibit the consider-
ation as a unit — and where it consisted of parts, or many things,

184 SPRINGFIELD.

Kinney e^a6. «. Turner.

each and all must be shown to have failed, — it is not so in plead-
ing a partial failure.

The court are of opinion that the second instruction given for
defendant, and the modification of the plaintiff's instruction, were
properly given: "That an acceptance of the quit-claim deed by
one of the defendants, would be binding upon them all, if the
jury believe, from the evidence, that they proceeded under said
deed, to use and enjoy the right conveyed by it."(a) The prin-
ciple laid down in the modification, as well as in all the other
instructions, is substantially the same as this, and need not beset
out. The objections urged, are upon the ground that parties,
not partners, are not bound by the several separate acts of each.
JBut without inquiring into, or discussing this proposition, it is
fully answered in this case by the latter part of the instruction,
which offers as evidence of the consent and acquiescence of each,
their proceeding "under said deed, to use and enjoy the right
conveyed by it." A party who acts under a contract in this sense
is bound by it, nor can a party Avho acts under a contract in this
sense, allege non-performance of it. 1-i John. Rep. 401 ; 1
:rairfield R. 415.

It is competent for the parties to modify or rescind the contract
in whole or in part, and this may be shown by the conduct of the
p)arties under it. 4 Gilm. R. 333. But one party alone cannot
alter the contract ; he must perform it, or avoid it m toto by de-
livering up the benefit and advantages he derived, or claimed un-
der it. 6 Cowen's R. 449.(6)

As the judgment must be reversed and the cause remanded for
the error in sustaining the demurrer to the fourth plea, we deem
it unnecessary to notice the questions raised upon the motion for
a new trial upon the evidence and affidavits.

Judgment reversed and cause remanded for further pro-
ceedings conformable to this opinion.

Judgment reversed.

(n) Brown v. Scliuler, 41 111. R. 19C ; Shelby i: Hutchinson, 4 Gil. R.
328 and notes.
(b) Boney v. Smith, 17 111. R. 533.

DECEMBER TERM, 1853. 185

Insane Hospital v. Higgins ; Same v. Crocker.

Illinois State Hospital for the Insane, appellont, v. James
M. Higgins, appellee ; The same, appellant, v. John Crock-
er, appellee.

APPEAL FROM MORGAN.

A suit should be brought against a corporation, and not against the

individuals incorporated by a common apiiellation.
Dues pajrable out of a particular fund, cannot be recovered in debtor

assumpsit ; the appropriate remedy is by mandamus, after the account

has been audited by the proper officer.

These cases were heard before Woodson, Judge of the
Morgan Circuit Court, at October term, 1853.
The facts are stated in the opinion of the court.

W. Broavn, and Stuart and Edwards, for appellant.

M. McConnel, for appellee.

Scates, J. The summons issued against the " Illinois State
Hospital for the Insane," and the declaration counted accordingly
in case on promises for salary due Higgins, as medical superin-
tendent. Overruling a demurrer to the declaration is the error
assigned ; and the only question raised is the right to maintain
an action against the institution by this name, and to recover "this
demand in this form of action. We are of opinion that the
action will not lie.

The institution is incorporated by the name of the " Trustees
of the Illinois State Hospital for the Insane," in which it may
sue and be sued and take and hold property, and transact all
necessary business, although it is styled and known as the Illinois
State Hospital for the Insane. Acts 18-17, p. 42, sees. 1, 2, 9.

Being a corporate body and not a voluntary association for
eleemosynary purposes, where suit is brought it should be against
the corporation and not against the individuals incorporated by
the common appellation of the institution. They are not liable
for the acts of the corporation in an action in that name.

The court resolves further that dues payable out of a particu-
lar fund, as the medical superintendent's salary in this case, do
not arise on contract and will not authorize an action of debt or
assumpsit, which would entitle the plaintiff below to general sat-
isfaction out of the general property of the institution. 10 Eng.

186 SPRINGFIELD.

Vi2:nos V. Vimos.

C. L., and Eq. R. 490 ; 70 Eng. C. L. R. 535 ; 4 Serg. and

Rawle's R. 448 ; 8 Meeson and Welsby's R. 605.

The appropriate remedy for the defendant is to have his
account audited by the proper officer of the institution ; and upon
refusal of the officer, either to audit the account or to make
proper allowances, a mandamus will lie to compel its adjustment.

Juds:77ient reversed.

Joseph Vignos, plaintiff in error, v. Harriet Yignos, defendant

in error.

ERROR TO MACOUPIX.

The marriage contract will not be dissolved for light and trivial causes;

and parties should not be encouraged to ask for a divorce, unless thej-

can show such a case as the law requires.
Unkind treatment, threats of personal violence, abusive language, and

opprobrious epithets, without personal violence, do not constitute that

degree of extreme and repeated cruelty which the statute requires, to

authorize a decree of divorcefor that cause.

This cause was heard bef()re Woodson, Judge, at September
term, 1853, of the Macoupin Circuit Court.

The facts of the case will be found in the opinion of the
Court.

J. M. Palisier, for plaintiff in error.

W. Weer, for defendant in error.

Caton, J. The principles involved in this case are precisely
like those decided in the case of Birkby v. Birkby, ante 120,
and must be decided in the same way. The complaint in the bill
is cruelty on the part of the husband towards the wife ; but the
record does not show that degree of extreme and repeated
cruelty which the statute requires to authorize a decree for a
divorce for that cause. That the husband was unkind in his

DECEMBER TERM, 1853. 187

King et al. v. King.

treatment, and tyrannical in his disposition, is most likely true,
but there is no personal violence shown, unless it may possibly
be inferred upon one occasion, -when in bed together, she was
overheard to request him not to kick her. Whether he had
kicked her or did kick her the witness did not know, nor did the
party state. He upon one occasion commanded her to make up
a fire and get him some dinner, and reproved her harshly for
talking with a neighbor passing by, in such a way as to evince a
no doubt groundless jealousy on his part, and drove her from
his house, to which she never returned. All this comes far short
of what we conceive to be the requirements of the statute, to
constitute extreme and repeated cruelty. The marriage contract
should not be dissolved for light and trivial causes ; and parties
should not be encouraged by our decisions to come into court
and ask for a divorce, unless they can show such a case as the
law requires. (a)

It is not enough that the parties do not live happily together.
Threats of personal violence may have been used, and abusive
language and opprobrious epithets, originating in a groundless
jealousy ; but this we cannot hold to be a sufficient ground for a
divorce under our statute. The whole community is interested in
maintaining the binding obligations of the marriage relation, and
public policy forbids that it should be dissolved, even with the
consent of the defendant, unless the actual facts shown to exist
really justifies it, under the law. Such, we are clearly of opinion,
is not the case here, and the decree of the circuit court must be
reversed, and the suit remanded.

Decree reversed.

('/) Birkly x>. Birkly, ante 122 and notes ; Von Glahn «. Von Glahn, 46
111. R. 134.

Richard T. Kraae/a/.,by their guardian, plaintiffs in error,
V. Rachel King, defendant in error.

ERROR TO MORGAN.

Even if a court of chancery had jurisdiction to sanction a compromise on
behalf of infants who are suitors before it, so as to satisfy the claims of
the widow for dower, by cash, yet such a power should always be exer-
cised with great care and circumspection, and only where it is clearly
and manifestly for the interest of the infants to do so. The court will
not sanction an agreement made by a guardian in such case, unless it
is satisfied that the interests of the infants would be promoted thereby.

188 SPRINGFIELD.

Kino; et al. v. Kina:.

This cause was heard before Woodson, Judge, at March term,.
1853, of the Morgan Circuit Court. The case will be found
stated in the opinion of the court.

William Thomas, for plaintiffs in error.

D. A. Smith, for defendant in error.

CatOjST, J. This was a bill in chancery filed by a part of the-
heirs of William King, deceased, who were infants, and ap-
peared by their guardian, against the remainder of the heirs,
praying for a partition of the lands which they had inherited
from their ancestor, or that they be sold, and the proceeds dis-
tributed, if it should appear that they could not be advanta-
geously divided. It turned out that they could uot be divided
without injury to the estate. An amended bill was then filed,
making Rachel King, widow of William King, a party, and
showing that her dower had been assigned to her in the prem-
ises, and that the whole estate, including the portion assigned
to the widow for her dower, could be more advantageously sold
together, than it could be with the portion assigned to the widow,
detached, and praying that the whole might be sold together, and
the proceeds disposed of according to the respective rights of the
parties.

The widow answered, consenting to the sale of the portion
assigned to her, with the rest, provided she should be paid out
of the proceeds of the sale, the value of her dower in the prem-
ises to be computed on the principle of life annuities, estimat-
ing interest at six per cent., according to Dr. Wigglesworth's
Tables of Mortality ; and showing that she was forty-seven years
of age. (a)

The guardian of the complainants acceded to this proposition,
and a reference was made to the master, who reported in favor
of it, and that according to those tables, the life-estate of the
widow was sixty-four dollars and ninety-six cents out of every
hundred dollars of the proceeds of the land which had been set
apart for the widow's dower. Upon this principle, a decree was
entered by the circuit court.

The guardian not being satisfied with the result, has brought
the case here for our consideration.

We will not say that the court of chancery may not have
jurisdiction to enter into, or to sanction a compromise on behalf

(n) Now widow may be allowed of proceeds a part, »fcc. Laws of 1867,.
p. 156.

DECEMBER TERM, 1853. 189

Gaty et al. v. Casey et al.

of* infants who are suitors before it, so as to satisfy the
claim of the widow for dower, by cash, but such a power shoukl
always be exercised with great care and circumspection, and
only where it is clearly and manifestly to the interests of the
infants to do so. This we are not satisfied was the case here,
and we cannot approve of the decree for the division of the pro-
ceeds of the sale of the lands, in which the widow had a life-
estate. By the decree the heirs get but about thirty-five per
cent, of the proceeds of the sale of the estate thus situated.
We shall not stop now to inquire whether the tables relied
upon afford the best and most just means of computing the
present value of a life- estate in lands. In this instance, and
under the circumstances of this case, we do not think that it is
manifestly for the interests of the infants that their title in re-
mainder, should be parted with for thirty-five per cent, of the
present value of the estate. The question cannot be in the
least embarrassed by the consent originally given by the guar-
dian to the proposition made by the doweress. He could not
bind the infants by any such agreement or consent. It is for
the court to say, whether, the whole case being considered, they
are satisfied the interests of the infants would be promoted by
the sale of their title in remainder. Ordinarily the law pre-
sumes that it is for the interest of the heir that he retain the
title in remainder, till the life-estate terminates. Here there is
no intimation that the proceeds are needed for the maintenance
or education of the infants, nor is it shown how those proceeds
can be more advantageously invested. We are of opinion that
it would be more to the interests of the infants to retain their
title to the estate, than to part with it on the terms prescribed
in the decree. The decree must be reversed, and the suit re-
manded.

Decree reversed.

Samuel Gaty et al., plaintiffs in error, v. Thomas J. Casey
et al., defendants in error.

ERROR TO ADAMS.

It is the use of tlie materials furnished, and the putting of them into
the building, and attaching them to tlie freeliold, which entitles the
party to a lien, to the extent of the value of them.

190 SPRINGFIELD.

Gaty et al. v. Casey et al.

And if such materials become severed from the freehold by fire, the lien
is not thereby destroyed.

A court of equity will treat the money derived from the sale of
property upon which there is a mechanics' lien, as it would, the prop-
erty before a sale, and will pursue it into the hands of the party Avho
has converted the property into money.

In May, 1849, Gaty, McCune, and Glasby, filed their bill for
a lien, against Thomas J. Casey and others,' setting forth that
on the 24th day of July, 1848, they sold to Casey, in St. Louis,
Missouri, two large steam boilers and fire-gauge cocks, to be
used by said Casey in repairing the machinery belonging to a
mill, in the county of Adams, State of Illinois, owned and occu-
pied by said Casey ; the said Casey agreeing to pay $978.05,
which boiler and gauge cocks were used by said Casey in re-
pairing said mill. The bill further sets forth, that before said
mill had been conveyed absolutely to said Casey, the former
owner had incumbered it to a large amount, by deeds of trust.
The persons owning these incumbrances were made parties to
the bill.

In February, 1850, N. Bushnell, one of the defendants, in his
capacity as trustee in said deeds of trust, filed his answer set-
ting forth in detail said several deeds of trust, and that Samuel
H. Kennedy and Joseph W. Foster, as partners, had purchased
an interest in said deed of trust, and should be made parties,
and further setting forth that the time for the payment of the
debt secured by said deed of trust expired on the 16th day of
July, 1848.

At the October term, 1850, the complainants filed a supple-
mental petition, setting forth that since the filing of the original
bill, the mill had been sold under said deed of trust, and pur-
chased by Foster for the benefit of said Kennedy & Foster ;
and that since said sale, and in the month of January, 1850, the
buildings on said premises were destroyed by fire, being insured
at the time for $9,000, which sum was received by said Foster
from the insurance companies. This supplemental bill further
sets forth, that the said boilers and gauge cocks were saved from
said fire, slightly injured, and afterwards sold by said Foster,
for said firm of Kennedy & Foster, being at the time subject to
the lien of complainants, of which Kennedy & Foster had
notice. This bill makes Kennedy & Foster parties, and prays
a decree that they pay over the amount received by them on the
sale of the boilers.

To this bill Bushnell and Kennedy filed an answer, again set-
ting forth in detail the said incumbrances on said property, and
the purchase of said property by said Foster, under the deed of

DECEMBER TERM, 1853. 191

Gaty et al. v. Casey et al.

trust, setting fortli said deed to Foster ; and further insisting,
that said incumbrances were paramount to the lien of the com-
plainants, and greatly exceeded in amount the value of said
property.

Foster died, and his death was suggested on the record.

The cause came on to a hearing at the April term, 1853, upon
the original and supplemental bill, answers of Bushnell and
Kennedy, and replication thereto, and upon deposition and oral
proof.

The deposition of Webster proves the sale of the boilers to be
used in repairing said mill, as alleged in said bill.

The complainants further proved, the the mill was burned in
January, 1850; that the boilers were saved and afterwards sold by
Kennedy & Foster, in cash, for $625, of which $300 was left in
the hands of N. Bushnell, to abide the event of this suit, and be
paid over according to the decree of the court.

The defendants then proved that these boilers were placed in
the mill, in place of some old boilers taken out, which old boilers
were worth $250.

The defendants then proved the existence of the prior incum-
brances on the property, as alleged in the answer of Bushnell,
and that these incumbrances exceeded the value of the property,
and that the property had been purchased by Kennedy & Foster
on the sale under the deed of trust.

The court made a decree dismissing the bill as to all the
defendants except Casey, "and the complainants appealed.

This cause was heard before 0. C. Skinner, Judge, at the
March term, 1853, of the Adams Circuit Court.

Williams & Lawrence, for plaintiffs in error.

BROWNma & Bushnell, for defendants in error.

Caton, J. This is a bill to enforce a mechanics' lien under
our statute. The complainants, in St. Louis, sold to Casey
some steam-boilers and gauge cocks, for the purpose of repair-
ing a mill in Adams county, in this State, which Casey put into
the mill. Previous to the time Casey had purchased the mill
property, his grantees had incumbered it by certain deeds of
trust, to secure a large amount of money. Under these deeds
the trustees sold and conveyed the property to Foster, who pur-
chased for himself and Kennedy. Afterwards, the mill burned
down, and the boilers were saved and but little damaged, and
were sold by Foster & Kennedy for $625, three hundred dol-
lars of which were left in the hands of the defendant Bushnell, to

192 SPRINGFIELD.

Gaty et al. v. Casey et al.

abide the event of this suit, according to the decree of the
court.

The first objection taken is, that as the contract was made out o£
the State, no lien can arise under our statute, which cannot oper-
ate extra-territorially. It is not the contract which creates the
lien under the statute, but it is the use of the material furnished
upon the premises, the putting of them into the building, and
attaching them to the freehold, which entitles the party furnish-,
ing the material to a lien upon the premises, to the extent of their
value. This objection is not well taken.

The complainants, then, were entitled to a lien for the mate-
rials which they furnished, and which were put into the mill.
The twentieth section determines the rights as between the
party furnishing the materials, and the previous incumbrance.
That section provides that "no incumbrances upon land created
|)efore or after the making of a contract under the provisions of
this chapter, shall operate upon the building erected, or materials
furnished, until the lien in favor of the person doing the work,
or furnishing the materials, shall have been satisfied ; and upon
Cjuestions arising between previous incumbrancers and creditors
under the provisions of this chapter, the previous incumbrance
shall be preferred to the extent of the value of the land at the
time of making the contract, and the court shall ascertain, by
jury or otherwise, as the case may require, what proportion of
the proceeds of any sale shall be paid to the several parties in
interest. This statute declares in express terms, that the deed
of trust which had been previously executed, and which was an
incumbrance upon the premises, could not operate upon the
steam-boilers and stopcocks which had been furnished by the
complainant. If the previous incumbrance could not operate
upon these materials, then a sale under the deed of trust could
convey no title to them to the purchaser; or if any title was
conveyed, it was subject to the prior lien of the complainants
to have their debt first paid out of the proceeds derived from
the sale of them. If this was the condition of the • property
wdiile it was attached to the freehold, and formed a part of the
mill, that condition was not changed by the severance from the
freehold, by means of the fire. That could not and ought not
to destroy the lien of the complainants upon the materials, and
vest in the purchasers under the deed of trust a perfect and
unincumbered title, when they had no such title before. They,
however, assumed to exercise such title, and sold those materials
after they were thus severed, for cash, thus putting them entirely
beyond the reach of the court. Bat a court of equity will not
allow its justice to be thus defeated. Whenever it is necessary

DECEMBER TERM, 1853. 193

Morrison v. Kurtz et al.

it will treat the money as it would the property, and follow it into
the hands of the party who has converted the property into
money. This is one of the most familiar principles by which
courts of equity have ever been governed, and this we think is a
proper case for its exercise. Had the property not been sold,
but remained upon the premises, the prior lien of the complain-
ants upon it to the extent of its value would be undoubted, and
the court could not hesitate to enforce it. It having been sold
and converted into money in violation of this prior right of the
complainants, the only relief w^hich the court can grant is to award
them the money which was realized from the sale of the property.
A court of equity cannot allow rights to be thus destroyed by the
wrongful act of one who is substantially claiming to have con-
verted the property of another into money which he may claim
as his own.

The decree of the circuit court must be reversed, and the suit
remanded.

Decree reversed.

(rt) Smith «. Moore, 26 111. R. 396 ; EUett v. Tyler, 41 111. R. 4 50 ; Ham-
mer «. Johnson, 44 111. R. 193.

Guy Morrison, plaintiff in error, v. Martin T. Kurtz et al.,
defendants in error.

ERROR TO MADISON.

While a court of equity has undouhted authority to compel one
creditor to satisfy his debt out of a particular fund to which he alone
can resort, yet it will never do this to the injury of such creditor, or
where that course will work injustice to other parties.

While the court possesses this poAver, it by no means follows that it
will always be exercised. It is the primary duty of the court to
protect all of the creditors in their just rights, and also the rights of
others.

Partnership estate should be first exhausted to pay partnership debts
before resort is had to the separate estates of tlie partners. And the
separate creditors are entitled to be first paid out of the separate
estates of the several partners.

£A partner in two firms may have claim of one firm allowed against
other insolvent firm.]

Martin T. Kurtz, as surviving partner of the firm of M. T.
Kurtz & Company, filed his bill, alleging that he, together with
■one Vines Davis, in the year 1850, being the owners of certain
real estate in the county of Madison, which he describes, upon
which was a steam flouring mill, formed a copartnership for the
purpose of carrying on the milling business, and that afterwards
one John Loyd became a member of said copartnership, paying

194 SPRINGFIELD.

Morrison v. Kurtz etal.

to Kurtz & Davis seven thousand dollars, •which were applied to
the satisfaction of the debts due by the copartnership ; that a
distillery was erected and carried on upon the same premises by
the firm ; that the firm became involved to the extent of eighteen
thousand dollars ; that soon after, Davis and Loyd lost their lives
by the same accident ; that Kurtz was unable to satisfy the debts
due by the firm or to carry on the business without loss. There-
fore, he prayed that the property of the firm should be sold and
the proceeds thereof be distributed in the payment of the debts
due. The estate and assets of the firm were ordered to be sold
and distributed, and a commissioner was appointed to carry out
the decree.

The commissioner sold and made his report, and the court
found and decreed upon it that the debt due Guy Morrison was
secured by a deed of trust on r§al estate which belonged to John
Loyd in his own right, and that Morrison have satisfaction of
his claim against the late firm of Kurtz, Davis & Co. out of and
from the real estate by which he is secured for the payment of
his said claim ; and that after having exhausted said real estate
for that purpose, if there should be a balance unpaid against
the firm, Morrison was to become a general creditor with the other
creditors who have presented their claims, and to be paid in the
same manner, to the extent of said balance ; and that the com-
missioner should retain in his hands an amount of money suf-
ficient to pay any deficiency of the claim of Morrison, which
might exist after the sale of the real estate on which he holds
the deed of trust.

By agreement the case was to be taken, if appealed, to the
supreme court at Springfield.

Morrison assigned for error that the court below erred in de-
creeing that the claims filed before the master by Martin T.Kurtz
& Co. be allowed to be paid out of the proceeds of the partner-
ship property with the other creditors, excepting the said Mor-
rison ; that the court erred in decreeing that Morrison have sat-
isfaction of his claim against the firm out of the real estate
mortgaged by Loyd for the payment of his claim, and that after
having exhausted said real estate, if there should remain a bal-
ance unpaid, that he was to become a general creditor with*
others, &c. ; and in not decreeing that the claim of Morrison
should be paid out of the partnership property as a general cred-
itor.

The decree was entered by Underwood, Judge, at August
term, 1853, of the Madison Circuit Court.

J. & D. Gillespie, for plaintiff in error.

DECEMBER TERM, 1853. 195

Morrison v. Kurtz et al.

H. Billings and G. Trumbull, for defendants in error.

Caton, J. Two question are presented for our consideration
in this case: First, whetlier Morrison is entitled to a distributive
share of the proceeds of the sale of the mill property upon his
debt; and second whether Kurtz & Co. are entitled also to share
in such distribution.

Morrison held a mortgage upon this property to secure his
debt, which was to be paid by Kurtz & Davis, who, at that
time, composed the firm. Loyd was taken into the firm as an
equal partner, and for the purpose of relieving the mill property
from that debt, that they might be enabled to raise other money
upon that property, new notes were given to Morrison, ex-
ecuted by all three of the partners, to secure which Loyd and
wife executed a deed of trust of his separate property to Mor-
rison. After the dissolution of the partnership by the death of
Davis & Loyd, a decree was entered in this suit at the instance
of the surviving partner directing the sale of the mill property
for the payment of the debts of the firm ; and Morrison presents
his claim before the master, and claims a distributive share of
the proceeds of the sale, as one of the creditors of the firm.
That his debt was due from the firm, and was a partnership
debt, there can be no question from the proofs reported by the
master, and the only objection to his sharing in the distribution
is, that the estate is insolvent, and that his debt is secured by a
deed of trust of Loyd's private estate, to which he can resort for
the payment of his debt, and to which the other creditors of
the firm cannot resort for the payment of their debts. While a
court of equity has an undoubted authority to compel one
creditor to satisfy his debt out of a particular fund to which he
alone can resort, yet it will never do this to the injury of such
creditor, or where that course will work injustice to other par-
ties. While the court possesses this power, it by no means fol
lows that it will be always exercised. It is the primary duty of
the court to protect all the creditors in their just rights, and
also the rights of others. We think Morrison has a right to
insist upon his distributive share of the cash raised from the
sale of the property as a creditor of the firm. As a creditor of
the firm he has the same abstract right to the proceeds of the
sale as the other creditors. He is as meritorious in every re-
spect as they ; and because he was more vigilant or cautious in
requiring security, it is no reason why he should be put in a
worse condition than the other creditors, by having his debt
postponed and his payment delayed till by a proper proceeding
he can realize out of the property upon which his debt is

196 SPRINGFIELD.

Morrison v. Kurtz et al.

secured, while the other creditors are paid in cash. Abstractly,
he has as much right to this money as they have, and they have
no merit over him which entities them to immediate payment,
while he is delayed.

But there is another reason why Morrison's debt should be
paid pro rata with the other creditors of the firm. By so much
as this dividend will reduce Morrison's debt, by so much will
Loyd's separate estate be relieved from the incumbrance of a
debt which is not properly chargeable upon his estate, but is
justly chargeable upon the partnership estate. Justice, there-
fore, to Loyd's separate creditors, who are here represented by
the administratrix, requires that the partnership estate should be
first exhausted in the payment of this, with other partnership
debts, before resort is had to his separate estate, for the pay-
ment of the firm liabilities. It is true that all of the separate
estates of the several partners is liable to the payment of the
partnership debts, but not till all of their separate creditors are
paid. The partnership estate is first liable for the payment of
the partnership debts, and the separate estates of the partners are
first liable to the payment of the separate debts, of the several
partners. This rule is a just one in principle, and the general
creditors of the firm cannot complain, when it is enforced in
favor of the representatives of Loyd's separate estate ; and it is
by no means certain that the separate creditors of Loyd would
not have the right to insist that Morrison should receive his dis-
tribution of the assets of the firm before resorting to Loyd's sep-
arate estate under the trust deed. At any rate, we think he
has a right to it, when it is claimed by him, and that the court
erred in excluding him from a distribution of the proceeds of the
sale of the firm property. («)

We think the court decided properly in admitting the firm
of Kurz, Davis & Stocking to a dividend upon their debt out
of the fund. Kurtz & Davis were members of both firms, but
Stocking was a stranger to the other copartnership. He, at
least, has a right to insist upon this dividend as much as if his
partners were not connected with the other firm. He, as a part-
ner, is liable for all of the debts of the firm of which he is a
member, and he has a right to insist that all which is due to
his firm shall be brought in to swell the fund out of which those
debts shall be first paid. It is true, that Kurtz and the estate
of Davis are liable for the debts of the firm of Kurtz, Davis &
Loyd ; but their interests in the assets of the other firm is not
thus liable till its debts have been all paid and a dividend made
to them of the residue. Then, and not till then, does it become

(fl) Berry et al. v. Powell, 18 111. R. 100.

DECEMBER TERM, 1853. 197

The County of Macoupin v. Edwards.

the separate property of the individual members ol the firm,
and, as such, liable for the debts of the other firm. The decree
directing the distribution of the proceeds of the sale of the prop-
erty specified, must be reversed, and the suit remanded, with
directions to let Morrison in for his distributive share, with the
other creditors.

Decree reversed.

The County of Macoupin, appellant, v. Henry Edwards,

appellee.

APPEAL FROM MACOUPIN.

The plaintiif below entered into a contract with Macoupin county to
properly feed and clothe every pauper sent to him upon the order of
any one member of the county court, for a specified sum. lleld^ that
he could recover no more than that sum from the county for taking
care of a lunatic pauper, although the trouble and expense was in-
creased by reason of the insanity. The term pauper, under the statute,
includes lunatic paupers.

A lunatic who is not a pauper would not be included within the agree-
ment.

This cause was heard before Woodson, Judge, without
the intervention of a jury, at September term, 1853, of the
Macoupin Circuit Court.

The facts of the case will be found in the opinion of the
court.

S. S. Gilbert, for appellant.

J. M. Palmer, for appellee.

Caton, J. In the contract entered into between Edwards
and the county court, the following stipulation is expressed :
" The said Edwards shall well and truly receive every pauper
sent to him upon the order of any one member of the county
court, and shall properly feed and clothe every pauper so sent
to him, and humanely treat the same," &c., for which he was
to receive one dollar and thirty-seven and one-half cents per
week for each pauper sent by the proper authorities, in addition
to the use of the farm, &c.

The agreed state of facts is as follows : " The members of
the county court sent to the poor-house, Whitfield, Sprowell,

ILL. R. VOL. XV. 14

198 SPRINGFIELD.

The County of Macoupin v. Edwards.

and Camp, three insane persons, wlio were kept by plaintiff
under their order. It was agreed that said persons were more
troublesome than persons of sound mind, and that it was worth
more to keep them ; and the plaintiff insists that, for keeping
said persons, he is entitled to such sum as it was reasonably
worth, without regard to the terms of said bond. The defend-
ants insist that these persons are embraced in the terms of said
contract. Upon these facts the court found for the plaintiff,
deciding that such insane persons were not within the terms of
said contract, and rendered judgment for the plaintiff for the sum
of two hundred and seventeen dollars and fifty cents, which it
is admitted it was reasonably M'orth, if not embraced in said
written contract."

The first section of the eightieth chapter R. S. defines a
pauper to be, "Every person who shall be unable to earn a
livelihood in consequence of any bodily infirmity, idiocy,
lunacy, or other unavoidable cause." B^ the subsequent pro-
vision of the same section, these persons are required to be sup-
ported by certain specified relations, if they have them, in any
county in the State, of sufficient ability to do so. If not, then
the third section provides that " The said pauper shall receive
.such relief as his or her case may require out of the county
treasury."

The fiftieth chapter of the Revised Statutes, entitled " Idiots
•and Lunatics," provides that whenever any idiot, lunatie, or
distracted person has any estate, the judge of the circuit court
may summon a jury to inquire whether such person "be
lunatic, insane, or distracted," and if the jury find him so to be,
the judge is required to appoint a conservator, who shall give
bond, and take charge of and manage his estate ; and the fourth
section provides that, "It shall be the duty of such conserva-
tor to apply the annual income, and the profits thereof, to the
support of such idiot, lunatic, or distracted person, his or
her family." Then the sixth section provides as follows : " The
overseers of the poor in every county shall take charge of the
body of any person so insane, lunatic, or distracted, and shall
have power to confine him or her, and shall comfortably support
such person, and make out an account thereof, and return the
same to the county commissioner's court, whose duty it
shall be to make an order requiring the treasurer of said county
to pay the same out of any money in the treasury of said
county, not otherwise appropriated."

There is no provision in this chapter, which in terms gives to
the conservator the control of the person of the lunatic, but it is
insisted that the sixth section does give the control of all

DECEMBER TERM, 1853. 199

The County of Macoupin v. EdwarcLs.

lunatics, whether they have conservators or not, or whether they
are paupers or not, to the overseers of the poor. Without de-
termining that question now, but assuming it to be true, we do
not think it justifies the decision of the cour; in this case. It is
certain, that the contract in this case covers all paupers sent by
the proper authorities to Edwards to be kept, whether they
become paupers from insanity or other cause, or whether they
be insane or not, and we think the presumption is, from the
agreed state of facts, that these persons were sent to Edwards
as paupers. The terms of the contract are explicit that he shall
take and support all paupers sent him, at the stipulated price,
and that must necessarily have reference to paupers as defined
by the statute, which in express terms includes lunatics who are
unable to support themselves. This, it must be presumed, the
plaintiff knew at the time he entered into the contract, and he
must have contracted in view of it. It is no doubt true, that
insane paupers are liable to be more troublesome than those of
sound mind, but not necessarily so. It constitutes no legal reason
why he should charge more than the stipulated price, because it
was worth more to keep them than ordinary paupers. With the
same propriety might he charge more for a pauper who was
afflicted with a loathsome disease ; or in any other case, where
extra trouble was incurred. He was not bound to take any but
paupers, and if the county authorities had assumed to take charge
of these persons, and they had sufficient estate to support them,
but were sent there merely for safe-keepmg, we should be inclined
to hold that the plaintiff might show that, by proof, and if shown,
he might recover upon the quantum meruit, because they would
not be embraced within the contract. But Ave think, very clearly,
the presumption is, from the agreed statement, that these per-
sons were sent to the plaintiff as paupers, and if he had refused
to take them on this evidence, he would have been liable on his
bond for such refusal. But having taken them, he is only enti-
tled to the price agreed upon, irrespective of the question, whether
it was worth more or less. The contract was one which the
county court had a right to make, and they have a right to insist
upon its terms.

The judgment must be reversed, and the cause remanded.

Judgment reversed.

^:/t^^^^^

200 SPRINGFIELD.

Watt «. Kirby.

David B. Watt, plaintiff in error, v. Eliab B. Kirby,
defendant in error.

ERROR TO SCOTT.

The limitation act of the 10th of Februarj'-, 1849, was intended to

have a prospective operation only.
Where credit was originally given to one of two partners, the creditor

cannot hold both liable, although both may receive the benefit of the

transaction.(a)
Where testimony is so equally balanced, that no conclusion can be drawn

from it, it is the duty of the jury to decide against the party who holds

the affirmative of the issue.
A party who makes an affirmative allegation, must maintain it by proof,

or the finding must be against him. His proof must be superior to

that offered by his adversary.

This cause was heard at the April term, 1853, of the Scott
Circuit Court, Woodson, Judge, presiding.

M. McCoNNEL, and N. M. Knapp, for plaintiff in error.
D. A. Smith, for defendant in error.

Treat, C. J. This was an aetion of debt, brought by Kirby
against D. B. Watt, surviving partner of D. Watt & Son.
The declaration contained the common counts. The defendant
pleaded nil debet ; and that the cause of action did not accrue
within five years. The court sustained a demurrer to the latter
plea. It appeared in evidence, that D. Watt run a flouring
mill for some time on his own account, and that D. B. Watt
was employed by him about the mill ; that they afterwards
formed a partnership under the style of D. Watt & Son, and
run the mill on account of the firm ; that Kirby was in the
habit of buying wheat, and having it delivered at the mill ; that
it was the custom to give receipts for the wheat, and for the
parties to settle thereby ; that Palmer delivered a quantity of
wheat at the mill for Kirby, but it did not appear whether any
receipt was ever given for it. The proof left it very doubtful
whether this wheat was delivered at the mill before or after the
formation of the partnership ; and whether it was included in
any settlement made between Kirby and D. Watt, or D. Watt &
Son. The plaintiff claimed to recover the value of the wheat
delivered by Palmer. The court instructed the jury, at
the request of the plaintiff, " that if the wheat was originally

(a) Wittram v. Van Wormer, 44 lU. R. 537.-

DE0EM8ER TERM, 1853. 201

Wott V. Kirby.

contracted for with D. Watt, but was delivered to D. Watt &
Son, and went to their use, then the defendant, as surviving
partner, is bound to account to the pUxintiff for the same ; and
unless he proves that it has been paid for, the plaintiff is entitled
to recover. The court refused to instruct the jury, at the
instance of the defendant, "that to enable the jury to find a ver-
dict for the plaintiff, they must believe from the evidence that
the wheat was sold and delivered by him to the firm of D. Watt
& Son ; and if the testimony in the case leaves the question
equally doubtful, whether the wheat was sold and delivered to
D. Watt before the partnership with his son, or to D. Watt
& Son, after the partnership, then they must find for the defend-
ant." The verdict and judgment were in favor of the
plaintiff.

1. The demurrer was properly sustained to the plea of the
statute of limitations. Before the passage of the act of the 10th of
February, 1849, there was no limitation to actions of debt upon
simple contract. That act required such actions to be brought
within five years, but it was intended to have a prospective opera-
tion only. This suit was commenced within five years after the
13th of April, 1849, the time when that act became operative.
The bar was therefore not complete. See the case of Trustees
of Schools V. Chamberlain, 14 Illinois, 495.

2. Where credit is originally given to one partner, the credi-
tor cannot hold the partners liable, although they may receive the
benefit of the transaction. The debt being separate in its incep-
tion, does not become joint by the subsequent application of the
funds to the purposes of the partnership. We do not consider the
instruction given for the plaintiff as impugning this principle.
It appeared that an arrangement existed between the plaintiff
and D. Watt, by which the former purchased wheat and had it
delivered at the mill carried on by the latter ; and that the same
course of business was pursued after the mill passed into the
hands of the partners. The partners were not chargeable for
any wheat delivered at the mill before the partnership was
formed, although it may have gone to their use. The liability
attached to D. Watt on the delivery of the wheat, and could not
be transferred to the partners without their express consent.
The credit was given to him, and not to the partners. But the
case is different in respect to grain delivered to the partners,
although it may have been delivered in pursuance of the previous
general arrangement. No credit was given to D. Watt when the
arrangement was made. It was the delivery alone that rendered
him liable. The partners are clearly liable as original contract-
ors for any grain delivered to them. They received it on their

202 SPRINGFIEIJ).

Cowgill et al. v. Long.

joint account, and not on behalf of D. Watt individually. The
credit was given to them, and not to him.

3. The court erred in refusing the instruction demanded by
the defendant. It is the duty of a jury to weigh the evidence,
and decide the issue as the evidence may preponderate. But a
case may occasionally arise where the testimony is so equally bal-
anced, that no conclusion can be drawn from it. In such case,,
it is clearly their duty to decide against the party who holds the
affirmative of the issue. The scale must incline to his side,
before he is entitled to a favorable decision. A party who
makes an affirmative allegation, must maintain it by proof, or
the finding must be against him. He must establish the truth of
the allegation. It is not enough that his proof may be equal to
that of his adversary. It must be superior. In this case, the
plaintiff alleged that the grain was delivered to the partners, and
it was incumbent on him to make good the allegation. If the
evidence tended equally to show a delivery to D. Watt, the defend-
ant was entitled to a verdict. In such event, the affirmative alle-
gation of the plaintiff was not established. Further testimony
was necessary to destroy the equilibrium, and turn the scale in his
favor. So if the grain was delivered to the partners, the burden
of proving payment would rest on the defendant ; and if he failed
to show payment by a preponderance of testimony, the plaintiff
would be entitled to judgment.

The judgment is reversed, and the cause remanded.

Juds'inent reversed.

William M. Cowgill f/ c/. , plaintiffs in error, r. James Gt..
Long, defendant in error.

ERROR TO MENARD.

It is essential to tlie validity of a school tax, that it be certified to the

clerk on the day designated by law.
The legislature has power to pass au act to remedy defects in the law

authorizing taxation for building school-houses, while the tax remains

uncollected.

Woodson, Judge, tried this case at May term, 1853, of the
Menard Circuit Court; .

DECEMBER TERM, 1853. 203

Cowffill et al. v. Lon<r.

W. H. IIerndon, for plaintiffs in error.
T. L. Harris, for det'emlant in error.

Treat, C J. The 82l1 section of the " Act to establish and
maintain common schools," approved February 12, 1840, pro-
vides: " On the first Saturday of May next, and on the first
Saturday of May annually thereafter, the inhabitants, legal
voters of any school district in this State, may meet together at
some convenient place in the district, for the purpose of voting
for or against levying a tax for the support of common schools,
for building and repairing school-houses, or for other school pur-
poses." It further provides, " that if five of said inhabitants
rec[uest it, the school directors shall call such meeting, to be
holden upon any Saturday." The 72d section requires the dis-
trict clerk to certify to the county clerk, before the first of July,
a correct abstract of the votes, and the amount of money voted
to be raised ; and makes it the duty of the county clerk, to charge
the amount upon the property assessed for taxation in the school
district, and enter the same in the tax book.

The 2d section of the " Act to amend the several acts concern-
ing the public revenue," approved February 8, 1849, requires the
assessor to return the assessment to the county clerk, by the first
Monday of September ; and makes it the duty of the county
clerk to eleliver the tax book to the collector, by the first Monday
of November.

On Saturday, the 20th of July, 1850, the inhabitants of a
school district in Menard county voted a tax of $500, for the
purpose of erecting a school-house in the district ; and the dis-
trict elerk certified the proceedings to the county clerk, on the
15th of October ; and the county. clerk charged the amount upon
the property assessed in the district, and made the necessary en-
tries in the tax book. Cowgill and Frackelten were charged
$28.26 on account of this tax; and the collector distrained their
property for its payment, on the 14th of May, 1851. They
thereupon filed a bill in chancery against the collector, and en-
joined him from selling the property distrained.

While this suit was pending, and on the 21st of January, 1853,
an act was passed in these words : " That the vote of the inhabi-
tants of school district No. 1, in township eighteen north, of
range seven west, in Menard county, and the tax voted by said
inhabitants, on the 20th day of July, 1850, are hereby declared
to be good, valid, and effectual in law and in equity ; and the act
of the secretary and chairman, in certifying to the district direc-
tors the record of the meeting of said inhabitants on the day and

204 SPRINGFIELD.

Cowffill et al. v. Lons:.

year aforesaid ; and the act of the district clerk, in certifying to
the clerk of the county court of said county the abstract of the
votes, and the amount of money voted to be raised at said meet-
ing ; and the act of the county clerk aforesaid, in computing the
tax upon the taxable property of said school district, are hereby
declared to be good, legal, and eHectual in law, in all respects
whatever."

The cause was submitted to the court, on the foregoing state
of case, and a decree was entered dissolving the injunction, and
dismissing the bill.

The tax might properly have been voted on " any Saturday"
in May or June. That term applied as well to the latter as the
former month. But the tax was improperly voted in July. It
was then too late to have the same charged on the assessment for
■ 1850. A school tax could not be included in the tax book of
that year, unless it was reported to the county clerk before the
first of July. This provision of the statute is imperative, and
in no sense discretionary. It is as essential to the validity of a
school tax, that it be certified to the county clerk by the day
designated, as it is to the validity of a State and County tax,
that the assessment be made and returned within the time limited.
If this was the only point in the case, the complainants would
clearly be entitled to the relief sought, or if the property seized
had been sold, their title would not be divested by the proceed-
ings. See Marsh v. Chesart, 1-1 111. 223 ; Billings v. Detten,
posl, 218.

But this question does not dispose of the case. The effect
of the act of the 21st of January, 1853, remains to be con-
sidered. The act relates exclusively to this particular tax ; and
the intention of the legislature cannot be mistaken. It was to
cure the defects in voting and charging the tax. And the
object was accomplished, if the legislature had power to pass
the act. So far as this case is concerned, there can be no
reasonable doubt of its authority in the matter. It was clearly
competent for the legislature to remedy these defects, while the
tax remained uncollected. Laws of this character are often
passed to secure the collection of taxes defectively levied, and
there can be no serious objection to their validity. When this
act was passed, the tax charged against the complainant was
unpaid. The proceedings, as to them, were not concluded. It
did not, therefore, have the effect to divest their title, and vest it
in another. They still had the right to pay the tax, and dis-
charge the levy on their property. If the property has since
been sacrificed to pay the tax, it is the result of their own neg-
lect. If the property had been sold prior to the passage of the

DECEMBER TERM, 1853. 205

Kimball v. Mulhern et al.

act, the case would present a more serious question. It might
then be contended, with some degree of plausibility, at least,
that their property had been taken from them by a legislative
decree, and transferred to another.
The decree must be affirmed.

Decree affi^^mcd.

{a) Post 218, 220 ; Smith on Con. of S. 546.

I-IiEAM Kimball, for the use of Phineas Kimball, plaintiff in
error, V. Justice Mulhern etal., as Assignees of John D.
Rennard, et al., defendants in error.

ERROR TO HANCOCK.

Property, in the hands of an assignee, for the purpose of paj'ing credi-
tors, cannot be reached by attachment or garnishee process.

Tins cause was heard by the court, Woodsox, Judge, pre-
siding, without the intervention of a jury, at October term, 1851,
of the Hancock Circuit Court.

The opinion gives a full statement of the case.

Broavning and Bushnell, and R. S. Blackv^^ell, for plaintiff
in error.

Warren and Edmonds, and Williams and Laavrence, for
defendants in error.

Treat, C. J. This was a proceeding by attachment, com-
menced in March, 1848, by Hiram Kimball against Justice Mul-
hern and George J. Barnett. The writ of attachment was levied
on certain real estate. The declaration alleged in substance that
Smith and Rennard were indebted to the plaintiff' in the sum of
$2,000, on the 12th of August, 1846 ; that on that day he sued
out an attachment against them, which was immediately levied on
their property ; that on the 20th of the same month Smith and
Rennard assigned all of their estate, including the property so
attached, to the defendants ; that an arrangement was thereupon

206 SPRINGFIELD.

Kimball v. Mulhern. et al.

made by which the plaintiff released the property attached, and
the defendants undertook to pay him $1,306,80, out of the first
proceeds of the estate assigned ; and that the defendants had.dis-
posed of the estate and received $5,000 on account thereof.
The declaration also contained a count for money had and re-
ceived. The defendants appeared, and pleaded non-assumpsit.

The cause was submitted to the court at the October term,
1851, The plaintiff read in evidence the proceedings in the at-
tachment suit referred to in the declaration. He also introduced
the officer who served the attachment issued in that case, who tes-
tified that he levied the same on a stock of goods in Nauvoo,
amounting in value to about $3,000 ; he did not invoice the
goods, because he was informed that the matter would be com-
promised ; he held the possession of the goods until the 20th of
August, 1846, at the request of the parties, to enable them to
settle ; it was then agreed between Kimball and Mulhern that
Kimball should release the goods from the lien of the attach-
ment, so that Mulhern and Barnett could receive them under an
assignment from Smith and Rennard, and that Mulhern and Bar-
nett would pay Kimball the amount of his debt, $1,300, and
save him harmless upon two or three orders or notes, amounting
to $800 or $900, drawn by Kimball, but which Smith and Ren-
nard were bound to pay ; Kimball then discharged the levy and
Smith and Rennard assigned all their property to Mulhern and
Barnett ; Barnett was not present.

The plaintiff then offered in evidence the deed of assignment
from Smith and Rennard to jMulhern and Barnett, bearing date
the 12th of August, 1846. It purported to be signed by all the
parties, and was acknowledged by Smith and Rennard and Mul-
hern on the 20th of August, 1846. Smith and Rennard thereby
assigned and conveyed all of their property to Mulhern and Bar-
nett, in trust for the payment of their creditors. The property
and the debts were particularly described in the assignment. The
list of property embraced all the property attached in this suit ;
and the list of debts included a demand in favor ©f Kimball for
$1,306.80. The deed, after directing the payment of the
necessary expenses of executing the trust, contained these pro-
visions: " The proceeds arising from the trust estate shall then
be devoted to the payment of the balance due John Benbow and
wife, on an unfinished contract for the purchase of certain lands
from the said John Benbow and wife, which hinds, when so paid for,
shall form a further security for the claim of Hiram Kimball, and the
liabilities of the said Hiram Kimball, as drawer of two certain bills of
exchange drawn by the said Hiram Kimball upon the said Smith and
Rennard, payable at the Bank of the State of Missouri, dated July

DECEMBER TERM, 1853. 207

Kimball v. MuUiern et nl.

18, 1846, and due three and four months after date ; also a certain
order of said Hiram Kimball on said Smith and Rennar<l, in
favor of William Allen, for $300, payable four months from
date ; and should it be desirable to sell said land, then the said
Hiram Kimball's lien upon said land shall be placed upon the
security for the purchase-money which the purchaser shall give ;
and the residue of the proceeds of such sale and collections
shall be considered as the net avails or proceeds of the
property and effects hereby assigned ; and by and with the net
avails and proceeds aforesaid, the said parties of the second part
shall pay and discharge the said debts of the said party of the
first part in the manner following, that is to say, the parties of
the second part shall pay, and discharge, in full, the several and
respective debts, bonds, notes, and sums of money, and bills of
exchange, due or to grow due from the said party of the first
part, for which they are liable to the several persons named and
designated, together with the interest due and to grow due on
such debts, bills and notes, and sums respectively ; and if said
net proceeds shall not be sufficient to pay the said debts and
liabilities in full, then the same shall be paid/;ro ra(a with such
net proceeds." It appeared from the assignment, that the
amount due to Benbow and wife was $1,500.

The plaintiff then called M. M. Merrill, who testified, that he
was the attorney of Kimball, in the attachment suit against
Smith and Rennard, and was present when the assignment was
made ; Kimball refused to release the goods unless Mulhern
and Barnett would pay his debt, and save him harmless from
the bills of exchange and order, and Mulhern agreed that they
would pay the debt, and see him indemnified ; Barnett was not
present, and did not execute the assignment ; Mulhern took
possession of the goods, and sold some of them to Hartwell ;
Bever kept the store open for several months, and did business
in the names of Mulhern and Barnett ; he sold some of the
goods, and shipped a portion of them to St. Louis.

The plaintiff also introduced the papers in an attachment
case, sued out in the names of Mulhern and Barnett against
John Benbow. The attachment bond purported to be exe-
cuted by Mulhern and Barnett, by Bever, as their attorney
in fact. J. Sibley testified, that "he acted as the attorney of
Mulhern and Barnett in that case, but did not recollect how it
was disposed of ; he received all his directions from Mulhern
and Bever, and knew nothing of Barnett.

The plaintiff also read in evidence a deed from Mulhern and
Barnett to Bever, for a tract of land embraced in the assign-
ment. It recited the payment of purchase-money, and was

208 SPRINGFIELD.

Kimball «. Mulhern et al.

acknowledged by both grantees in St. Louis. A witness testified
that Hartwell paid Mulhern ^500 for the goods purchased
by him.

On the foregoing evidence, the court rendered judgment in
favor of the plaintiff for ^1,706 ; with an order for execution
against the defendants generally, and a special execution against
the property attached.

Even if Mulhern and Barnett were personally liable to the
plaintiff, the court erred in awarding a special execution against
the property attached. The land was not subject to the payment
of a judgment against them. They had no beneficial interest
therein. It was not held by them in their own right, but
in the character of trustees for the creditors of Smith and Ren-
nard. They were invested with the legal title, to enable them
to execute the trust. It was their duty to sell the property, and
apply the proceeds to the payment of the debts named in the
deed of assignment. But if the suit had been brought against
Smith and Rennard, the property could not have been attached.
It was already appropriated for the benefit of their creditors.
Property in the hands of an assignee for the purpose of paying
creditors, cannot be reached by process of attachment. Lupton
V. Cutter, 8 Pickering, 298 ; Gore v. Clisby, ib. 555 ; Tucker
V. Clisby, 12 Pickering, 22 ; Sandford v. Bliss, ih. 116. A
creditor is not permitted to attach the property, or summon the
assignee as a garnishee, and thereby secure an advantage over
the other creditors. The property must be administered accord-
ing to the terms of the assignment. If the assignee neglects or
refuses to carry out the purposes of the trust, relief must be
sought in a court of equity. In any point of view, this property
was not attachable.

The evidence did not establish the joint liability of the de-
fendants. It did not show that Barnett was personally liable
for the debt. It did not tend to prove that he had promised to
pay it, or that he had ratified the promise made by Mulhern.
It was not a fair inference from the case, that he was even
aware that the promise had been made. The fact that he acted
under the assignment, did not render him liable for the assump-
sit of Mulhern. It only made him a party to the assignment,
and bound him to perform what it required of the assignees. It
is no part of the terms of the assignment, that the assignees
shall be personally responsible for the debts. It does not even
require that the plaintiff's debt shall be first paid, out of the pro-
ceeds of the property. It provides that the amount due to Ben-
bow shall be first paid, and that the property acquired from him
shall be applied to the payment of the plaintiff's debt, and some

DECEMBER TERM, 185^. 209

Markham v. Stevenson.

other debts for which he is liable. If the Benbow property is not
sufficient to discharge these demands, the phxintiff, as to the resi-
due, is in no better condition than the other creditors. The case
does not show that this property has been sold by the assignees,
or that they have received any money which by the terms of the
assignment belongs to the plaintiff. The property must be con-
verted into money, before he can maintain an action against them
for money had and received.

It was, however, insisted that the defendants admitted their
joint liability, by not pleading in abatement of the action. But
the case is not within the provisions of § 8, ch. 40, R. S. The
defendants are not sued as partners ; nor as joint obligors, or
payers. The plea of non-assumpsit put in issue all the allega-
tions of the declaration. The case of Petric v. Newell, 13 Illi-
nois, 647, settles this question.

The judgment must be reversed, and the cause remanded.

Judpnent revei^sed.

Hiram Markham, plaintiff in error, v. Bazil D. Stevenson,
defendant in error.

ERROR TO ADAMS.

A. sold to B. a tract of land, for which B. paid a certain sum in hand,
and Avas to pay an additional sum whenever the Supreme Court should
decide that a patent title was su.perior to a tax title ; — Held, that the
court having decided that the revenue laws referred to by the parties
were valid and constitutional, B. was released from his obligation to A.

This cause was heard before Sicinner, Judge, at the Octo-
ber term, 1851, of the Adams Circuit Court. The facts are
fully stated in the opinion of the court.

Warren and Edmunds, for plaintiff in error.

Browning and Bushnell, and Williams and Lawhence,
for defendant in error.

Treat, C. J. This was a suit in chancery, brought by
Markham agrainst Stevenson in 1850. It was founded on the

210 SPRINGFIELD.

Markham v. Stevenson.

following agreement : "This article of agreement, made and
entered into this 26th day of September, 1840, between Hiram
Markham, of the county of Knox, and State of Illinois, of the
one part, and Bazil D. Stevenson, of the county of Adams, and
State of Illinois, of the other part, witnesseth : that the said
Markham has this day sold by deed unto the said Stevenson,
the northwest quarter of section eleven, township two south,
range seven Avest, for and in consideration of which the said
Stevenson has paid and is to pay as follows, that is to say : he
has paid the sum of $400, the receipt of which is hereby
acknowledged by the said Markham ; and whereas the said
Markham claims title to the land under the patentee of the
United States, known under the name of a patent title, and
whereas there is an outstanding tax title on said land, it is
agreed between the parties, that there shall be no further pay-
ment made on said land, until after there shall have been a
decision of the supreme court of the State of Illinois, fully
establishing the validity of patent titles over tax titles of the
State of Illinois ; and if the decision of said court should be in
favor of patent titles, and that tax titles are not good, then the
said Stevenson is to pay said Markham the further sum of
$200 ; and whereas, it is agreed between the parties, that if the
decision as aforesaid should be against tax titles, that it would be
right and just to refund to the tax title owner of the land, all
the money which he has paid on account of the taxes on the
same, it is therefore agreed that after said decision as afore-
said, if the same should be in favor of patent titles as aforesaid,
the said Stevenson shall proceed to redeem said land from all
sales for taxes, and also refund all moneys Avhich may have
been paid for taxes on said land by tax title claimants ; and if
the said redemption and taxes as' aforesaid shall not amount to
the sum of $200, then all that it lacks of amounting to the sum
of $200, the said Stevenson is to pay to said Markham, so
that the said Stevenson, in case the aforesaid decision shall be
in favor of patent titles as aforesaid, will be required to pay
$800, including the $100 already paid to the said Markham ;
and on account of the redemption and taxes as aforesaid, the
amount of said redemption and taxes to be deducted from the
last $200 ; but if the said redemption and taxes should amount
to more than $200, the excess is to be paid by said Stevenson
without offset or charge to said Markham ; it is further agreed,
that said Stevenson shall not be required to pay interest to said
Markham, on account of the delay of payment of said money so
to be due to him, in case of said decision being in favor of
patent titles as aforesaid, until after he shall have been informed

DECEMBER TERM, 1853. 211

Markham v. Stevenson.

of said decision ; and it is further agreed, that if said decision
as aforesaid shall be adverse to patent titles, then said Steven-
son is to pay nothing more in addition to ^v'hat he has already
paid ; the decision aforesaid is to be a bona fide one upon due
and solemn deliberation, when the case shall turn exclusively
upon the validity of the laws of the State of Illinois, allowing
lands to be sold for taxes, and which shall be regarded as settling
the question decisively in favor of the patent titles as aforesaid.
It is agreed and understood between the parties, that the laws of
the State of Illinois allowing lands to be sold for taxes, and re-
ferred to in this agreement, are intended to be understood as
intending only the laws of said State passed prior to the 1st day
of December, 1838, and that the validity of laws passed since
that time is not brought in question under this agreement. Given
under our hands and seals this 26th of September, 1840.

Bazil D. Stevenson, [seal.]
Hiram Markham, [seal.]"

The bill alleged in substance, that the land was patented to
Champ in 1818, and was regularly conveyed by him to Palmer,
and by Palmer to the complainant, so that the latter was seized
in fee of the land, at the time of the conveyance to the defend-
ant in 1840 ; that the defendant went into the possession of the
land in 1840, and had since been in the undisturbed possession
of the same; that in 1823, the auditor exposed the land to sale
for the taxes of the two preceding years, and that Hoffman
became the purchaser of one hundred and twenty-nine acres
thereof ; that, the auditor conveyed that number of acres of the
land to Hoffman, but did not locate the same in any part of the
tract, and that Hoffman conveyed the same to Hall ; that this
tax title was absolutely void, and that there was no other tax
title to the land ; that in 1848, the defendant purchased the tax
title of Hall for ^100, and thus acquired the only outstanding
title to the land; that in 1849, the complainant demanded the
balance of the purchase-money, which the defendant refused to
pay ; that the condition in the agreement, that no further pay-
ment need be made unless there should be a decision of the
supreme court affirming the validity of patent titles over tax titles,
was nugatory and void ; and the bill claimed to enforce a vendor's
lien for the residue of the purchase-money.

The answer admitted the seizin of the complainant in 1840,
and that the defendant had since been in the uninterrupted pos-
session of the land ; it also admitted the sale and conveyance by
the auditor to Hoffman, by Hoffman to Hall, and by Hall to the
•defendant, as charged in the bill ; it likewise admitted that there

212 SPRINGFIELD.

Markham i\ Stevenson.

was no other tax title to the land, and that the defendant had
refused to make any further payment to Markham ; and it insisted
that a decision had been made by the supreme court in favor of
tax titles and against patent titles, long before the purchase from
Hall, and that in consequence thereof, the defendant was dis-
charged from making any further payments on account of the
land.

The cause was submitted to the court on the bill, answer, and
agreement ; and a decree was entered dismissing the bill.

When this agreement was made, there were tax titles to a
large portion of the lands in the military tract. The lands had
been granted by the United States to non-residents, who had
neglected to pay the taxes imposed by the State. This gave rise
to controversies between those deducing title from the paten-
tees, and those claiming title under deeds from the auditor. It
was a serious question which was the better title ; one about which
there was much difference of opinion. It was objected to tax titles,
that the revenue laws were unconstitutional. If the objection
should be sustained by the courts, tax titles would be worthless.
But if the objection should be overruled, tax titles would prevail
over patent titles, where the proceedings under the revenue laws
had been regular. The contract between these parties was made
in reference to this state of things. There were conflicting claims
to the land. Markham held the patent title, and Hall a tax title.
Stevenson was willing to pay $800 for the land, if he could ac-
quire a perfect title. He was also willing to pay $400 for Mark-
ham's title, and take the risk of the tax title. On this basis, the
parties contracted. Stevenson paid $100, and obtained the pat-
ent title. He also agreed to pay that much more, if the objection
taken to the revenue laws should be sustained by the supreme court.
Such a decision would utterly defeat the outstanding tax title.
And such a decision was to be pronounced, before he could be
called on to pay the remaining $400. The parties made such a
decision a condition precedent to the payment of the money.
They also agreed that a decision by the same court overruling
the objection to the revenue laws, should discharge Stevenson
from all liability to Markham. A state of case has not since
arisen which binds him to make any further payment. On the
other hand, a decision has been made, that releases him from
all liability on the agreement. The question of the validity of
the revenue laws, under which the land was sold for taxes,
came directly before the supreme court, at the December term,
1843, in the case of Rhinepart v. Schuyler. ' The court then
expressly held those laws to be constitutional ; and the decision
has been repeatedly affirmed in other cases. It was a^decision

DECEMBER TERM, 1853. ' 213

Clark r. The People, ex rel. Crane.

in favor of tax titles ami adverse to patent titles, witliiii the
true intent and meaning of tlie agreement of these parties. It
fully discharged Stevenson from the obligation to pay the remain-
ing $400. It settled the principle, that a tax title would prevail
against the patent title where the requirements of the statute
have been complied with. It left Stevenson at full liberty to
purchase the interest of Hall, or contest the validity of his tax
title. For the purposes of this case, it is immaterial whether
Hall had a good title or not. The parties stipulated that no
further payment need be made, unless the court should determine
the revenue laws to be invalid. They contemplated a decision
that Avould put an end to all controversy respecting the tax title,
one that would dispense with any inquiry into the regularity of the
proceedings. The question of the validity of this tax title was no
longer to be open for contest or discussion. (a)
The decree must be affirmed.

Judgment affirmed.

(a) Field ct nl. v. Rawlings. 1 Gi]. o81.

Jones Clark, plaintiff in error, v. The People, ex relatione
Samuel L. Craxe, defendants in error.

ERROR TO PIKE.

A county court or board of supervisors can only remove a county treas-
urer for one of the causes specilied in the statute; they do not possess
general powers of remoA^al.

In the proceeding by information in the nature of a quo warranto, the
defendant must either disclaim or justify ; if he justifies, he must set
out his title particularly, showing hj what warrant he exercises the
functions of the office. General allegations are insufficient. («)

It is no answer to an information, to state that the relator is not en-
titled to the office ; the defendant must allow that he is rightfully in
office.

It is error to render final judgment without disposing of demurrers filed
to the pleadings in a case.

This cause was heard before Woodson, Judge, at March term,
1852, of the Pike Circuit Court.

R. S. Blackwell and M. Hay, for plaintiff in error.

C. L. HiGBEB and G. Ed"svard3 for defendants in error.

(^0 Ang. on Corp. sec. 756.

ILL. R. VOL. XV. 15

214 SPRINGFIELD.

Clark V. The People, ex rd. Crane.

Treat, C. J. This was an information in the nature of a
quo icarranto, filed on the relation of Crane against Clark, at
the March terra, 1851, of the Pike circuit court. The informa-
tion alleged in substance, that at the December term, 1849, of
the Pike county court, the relator Avas appointed treasurer of the
county, to fill a vacancy occasioned by the death of the incum-
bent ; that he thereupon gave the requisite bond, took the pres-
cribed oath, and entered upon the duties of the ofiice ; that he
continued to discharge the duties until the 12th of September,

1850, when the defendant intruded into and usurped the office,
and from thenceforth exercised the powers and duties pertaining
thereto.

During the same term, the defendant filed two pleas, to which
there was a demurrer. The pleas were not numbered. This
order was made on the 16th of October, 1851 : " This day came
the parties, and the demurrer filed to the defendant's pleas was
■argued and taken under advisement.'' On the 18th of October,

1851, an order was entered in these words : " This day came the
parties by their attorneys, and leave is given defendant to file
additional pleas, and this cause is continued." The defendant
then filed three pleas, numbered 1, 2, and 3.

The first of these pleas, after alleging the adoption of town-
ship organization and the election of township officers, in pur-
suance of the act of the 12th of February, 1849, proceeded as
follows : '' That on the 8th of April, 1850, the said supervisors
met at Pittsfield, the county seat of said county, and organized
as a board for the transaction of county business, by which the
county court was entirely superseded as a board for the transac-
tion of county business, and the business of the county
devolved upon said board of supervisors ; and said defendant
further avers, that said act pi'ovides that said treasurer should
collect the delinquent and non-resident taxes, and that he should
•enter into bond, with two or more sureties, to be approved by
the said board of supervisors, in such sum as they should direct ;
conditioned that he should faithfully execute the duties of his
office, and pay according to law, all moneys that should come
to his hands, and render a true and just account to the board of
supervisors and auditor of public accounts when required, and
that said Crane neglected and refused ^to give such bond ; and
said defendant further avers, that said Crane refused to counter-
sign the orders passed by said board, or to settle with said board,
or to recognize any of their acts as lawful ; and said defendant
avers, that on the 12th day of May, 1850, for various reasons
in the order and resolutions set forth, said board passed an order
removing the said Crane from the office of treasurer, and declar-

DECEMBER TERM, 1853. 215

Clark V. The People, ex rd. Crane.

ing said office vacant ; and that the office being so vacant, the
said board of supervisors did, on the day and year aforesaid,
appoint the said defendant treasurer of said county of Pike,
and that the said defendant then and there took the oath of
office, and entered into bond as required by law; and that the
said defendant exercised said office by virtue of said appoint-
ment, and that he did not intrude himself into the same, and
this he is ready to verify ; wherefore he prays judgment."

The second plea alleged " that on the 12th day of May, 1850,
the office of county treasurer of the county of Pike, and State
of Illinois, was Vacant, and the board of supervisors of said
county afterwards, to- wit, on the day and year aforesaid, filled
the vacancy by the appointment of the defendant to fill said
office; and the said defendant afterwards, to-wit, on the day
and year aforesaid, filed his bond and took the oath of office
according to law, and thereupon exercised and discharged the
duties of county treasurer.

The third plea alleged " that said Crane was not, on said
12th day of May, 1850, county treasurer of said county of Pike,
and State of Illinois ; but that the said defendant was county
treasurer for said county, duly appointed and qualified, and as
such, lawfully discharged the duties cf said office."

A demurrer was filed to three pleas on the 18th of March,
1852. On the 22d of the same month, an order was entered in
these words : "This day came the parties by their attorneys, and
the demurrer filed, at a former day of this term, to pleas num-
bers 1, 2 and 3 ; it is ordered by the court that the said demurrer
be sustained." And on the next day, an order was made as fol-
lows : " This day came again the plaintiffs and the said defend-
ant, and this cause coming on for hearing on demurrer to
defendant's pleas, numbers 1, 2 and 3, and the court having
heard the arguments of counsel, and being fully advised in the
premises, it is considered and adjudged by the court, that said
demurrer be sustained. It is therefore adjudged by the court,
that the respondent, Jones Clark, did, on the 12th day of Sep-
tember, 1850, unlawfully intrude into, usurp, and exercise the
office of treasurer of the said county of Pike, and State of
Illinois, and illegally exercised the functions and received the
emoluments of said office, from the said 12th day of Septem-
ber, until the first Monday of December, 1851 ; and that during
all that time the said relator, Samuel L. Crane, had right and
title to said office of treasurer, and lawful authority to exercise
the functions and receive the emoluments thereof. But inas-
much as it appears to the court, that the right of the said relator
to said office hath expired by efflux of time, no judgment of

216 SPRINGFIELD.

Clark V. The People, exrel. Crane.

ouster or restoration is necessary." It is further ordered that
the defendant pay the costs of the proceeding.

The statute provides, that "the county commissioners' court
of each and every county in this State, shall at their June and
December terms in each year, settle with their county treasurer,
and count the funds then in the treasury of their county ;" and.
" should the treasurer, at any such settlement, prove a defaulter,
and be actually in arrears with the county, the county commis-
sioners shall immediately dismiss him from office." The county
commissioners' court of any county in this State, may at any
time call, through their clerk, upon the treasurer of their county
for a settlement, and should said treasurer neglect or refuse to
appear and make settlement as notified to do, said commis-
sioners shall declare his office vacant." " Should the county
commissioners' court of any county in this State be of the
opinion that the treasurer of their county has at any time used
the funds of said county when current, and replaced the same
in depreciated funds, they shall have the power to examine said
treasurer under oath as touching said transaction ; and if it
shall appear that he has parted with any current funds belong-
ing to the county, and replaced the same with funds less
valuable, they shall immediately dismiss him from office."
" Should any county treasurer be dismissed from office pursu-
ant to the provisions of this chapter, it shall be the duty of
the county commissioners' court to appoint some suitable person
to fill the vacancy so occasioned." R. S. ch. 28, §§ 11,12, 15,
16 and 17. " If any offiser of a county shall remove from, and
permanently reside out of the same, his office shall be deemed
vacant, and such vacancy shall be filled as in other cases."'
R. S. ch. 77, § 9. "A refusal or neglect of the treasurer to
qualify and act as assessor, shall vacate his office as treasurer,
and the county commissioners' court shall thereupon appoint
some suitable person to fill such vacancy. The treasurer shall
keep his office at the county seat, and his neglect to do so shall
vacate his office." R. S. ch, 89, § 13. It is made the duty of
the county commissioners' court semi-annually to inquire into
the sufficiency of the treasurer's bond, and if found to be in-
sufficient, to require him to execute another bond ; and on the
failure of the treasurer to give such bond^ the county may
declare the office vacant, and fill the vacancy as if it was caused
by death or resignation. R. S. ch. 79, §§2 and 6.

These are the only provisions of the statuce, that authorize a
county court to dismiss a treasurer from office. As that officer
is elected by the people, the court does not possess the general
power of removal. It can only remove for one of the causes

DECEMBER TERM, 1853. 217

Clark V. The People, ex rel. Crane.

.specified in the statute. It cannot appoint to the office, except
in tlie case ot! a vacancy. And a vacancy can only happen in
the way indicated, or by the death or resignation of the incum-
bent. In this respect, no greater power is confen-ed on the board
of supervisors, than is vested in the county court. See Laws of
1849, p. 202, art. 16, § 4, and p. 204, art. 17.

The first plea is clearly defective. It fails to show that the
relator was legally dismissed from the office of treasurer. It
alleges that he was removed for various reasons stated in an
order of the board of supervisors, but the order itself is not set
forth. The reasons ought to appear at large in the plea, so
that the court might determine whether the removal was for
one of the causes specified in the statute. A dismissal for any
other cause would not create a vacancy in the office, nor justify
the board of supervisors in appointing the defendant. He
could have no right to the office, unless the relator was properly
removed therefrom. In the proceeding by information in the
nature of a quo luarranto, the defendant must either disclaim or
justify. If he disclaims, the people are at once entitled to judg-
ment, li: he justifies, he must set out his title specially. It is
not enough to allege generally that he was duly elected or
appointed to the office ; but he must state particularly how he
was elected or appointed. He must show on the face of the
■plea, that he has a valid title to the office. The people are not
bound to show anything. The information calls upon the
defendant to show by what warrant he exercises the functions
oO the office, and he must exhibit good authority for so doing,
or the people will be entitled to judgment of ouster. Cole on
Criminal Informations, 210 to 212 ; Willcock on Municipal Cor-
porations, 486 to 488 ; Angell & Ames on Corporations, § 756.

The second plea is also too general. It does not state how
the office became vacant ; nor does it show with sufficient cer-
tainty how the defendant was appointed. The third plea is
likewise defective. The defendant does not attempt to set out
•his title. It is no answer to the information, that the relator is
not entitled to the office. The defendant must show that he is
rightfully in office, or the people are entitled to judgment against
him.

But there is an error in the record, for which the judgment
must be reversed. It does not appear that any disposition was
made of the two pleas first filed. The record only shows that a
•demurrer to them was argued and taken under advisement. It
fails to show that any decision was ever made by the court. The
-entry of the 22d of March, 1852, cannot be considered as apply-
ing to these pleas. Erom the description given, It manifestly

218 SPRINGFIELD.

Billings V. Detten.

relates to the second set of pleas. The judgment was entered
at length on the following day, without noticing the fact that the
order sustaining the demurrer had been already entered. These
two entries evidently refer to the same set of pleas. It was
clearly error to render final judgment in the case, without dispos-
ing of the demurrer to the first set of pleas. As that demurrer
has not been decided, this court has no authority to pass upon
the sufiiciency of these pleas.

The judgment must be reversed, and the cause remanded.

Judsrnienl reversed.

Henry W. Billings, plaintiff in error, v. John Detten, defend-
ant in error.

ERROR TO MADISON.

The ftiilure of an assessor to make his return within the time designated

by law, vitiates the assessment.
Such defects cannot be cured by subsequent legislation, where the taxes

have been collected, or where further proceedings were not necessary

to secure their collection. (/■/)

This cause was heard by the court, Underwood, Judge, pre-
siding, at August term, 1853, of the Madison Circuit Court.

H. W. Billings, pro se.

W. Martin, for defendant in error.

Treat, C. J. This was an action of ejectment, brought by
Billings against Detten, to recover the possession of the Avest half
of the southeast quarter of section thirteen, township six north,
range ten west, in Madison county.

It was admitted on the trial, that the plaintifi" bad title to the
premises in question, by a regular chain of conveyances from the
patentee ; that no taxes were due thereon, and that the defendant
was in possession when the suit was commenced.

The defendant read in evidence the record of a judgment of
the Madison circuit court, rendered at the October term, 184G,
against the premises and other real estate, for the taxes assessed

(o) See Keating v. Thorp, jjost 220.

DECEMBER TERM, 1853. 219

Billings V. Detten.

thereon, for the year 1845 ; also a precept issued on the judg-
ment ; and a sheriff's deed for the premises to the defendant.

The plaintiff then introduced the assessor's books for 1845, and
proved by the assessor for that year, that the same were not
returned to the county commissioners' court until the 30th of
October, 1845.

On this evidence, the court found the issue for the defendant,
and rendered judgment in his favor.

The 21st section of the act of March 3d, 1845, under -svhich
the premises were assessed, recjuired the assessor to complete
the assessment, and return the same to the clerk of the county
commissioners' court, by the first Monday of August ; and the
•26th section authorized the owners of property assessed to apply
to that court, at its September term, but not afterwards, for a
reduction of the assessment. A month Avas given them, in which
to inspect the assessor's books, and prepare their objections to
the assessment. In this case, they were deprived of this right
of appeal altogether, as the assessment was not returned until
after the close of the September term. The failure of the
assessor to make his return within the time designated, clearly
vitiated the assessment. This requirement of the statute was
designed for the benefit of the owners of the property assessed.
It should be strictly complied with, in order to divest them of
title. On this point, the case of Marsh v. Chestnut, 14 Illinois,
223, is perfectly conclusive.

But it is insisted, that this defect in the assessment was cured
by subsequent legislation. The case of Marsh v. Chestnut
decides that the assessment was not legalized, by the acts of the
8th of February, 1849, and the 15th of February, 1851. It was
there held that those acts applied only to assessments on which
further proceedings were necessary to secure the collection of the
taxes ; and that they had no relation to assessments, where
nothing remained to be done under them. The proceedings on
this assessment were entirely concluded, long before the passage
of either of those acts. The assessment, therefore, derived no
aid from their provisions.

The only other statute relied on to support the assessment, is
that of the 5th of February, 1849. It reads thus : ''That the
assessment of property for taxation in the county of Madison,
State of Illiuois, for the years 1845, 1846, and 1847, be, and the
same are hereby legalized, any neglect or inability on the part of
the assessor or assessors of said county to make and return the
assessment for either or all of said years Avithinthe time required
by law, to the contrary notwithstanding." This act, in all mate-
rial respects, is like "those already noticed. The only difference

220 SPRINGFIELD.

Keating v. Thorp.

consists in this : that the one relates to a single county, and to
particular assessments ; while the others appl}^ to the whole State,
and to assessments generally. This act must receive the same
construction, that was put upon those acts. The reasoning in
Marsh v. Chestnut,(a) in reference to those acts, is strictly applica-
ble to this act, and need not here be repeated. The act was not
passed to protect the titles of purchasers at tax sales ; but for
the purpose of facilitating the collection of the revenue. It has
no application to this case, because the taxes on the premises
were collected prior to its passage. (/>)

The judgment of the circuit court will be reversed, and the
cause remanded.

Juds;mc7it reversed.

(«) 14 111. R. 323.

(b) Cowgill et al. v. Long, ante 304.

Edward Keating, plaintiff in error, v. GEonaE Thorp, defend-
ant in error.

ERROR TO :\IADISOX.

[See ante 318 for syllabus.]

This cause was heard before Uxderavood, Judge, at August
term, 1852, of the Madison Circuit Court.

J. and D. Gillespie, for plaintift' in error.

W. Martin, for defendant in error.

Treat, C. J. This was an action of ejectment, brought by
Keating against Thorp, to recover the possession of lot eleven,
block seven, in the city of Alton, Madison county.

J.t was admitted on the trial, that the defendant had title to the
lot, and that no taxes were due thereon ; and that he was in pos-
session when the suit was brought.

The plaintiff introduced the following evidence. A judg-
ment of the Madison circuit court, entered at the August term.
1847, against the lot and other real estate, for the taxes assessed
against the same for the year 1846 ; a precept issued on the
judgment ; a sheriff's deed for the lot to Cooper ; . and a deed for
the same from Cooper to the plaintiff.

The defendant then proved that the assessor's books for 1846,

DECEMBER TERM, 1853. 221

Pate V. The People.

were not returned to the county commissioners' court until the
27th of October of that year.

On this state of facts, the court found the issue in favor of the
defendant, and entered judgment for him.

The decision in Billings v. Detten, ante, is conclusive of this
case. The lot was not assessed within the time required by law.
The judgment was entered and the sale made, prior to the pas-
sage of any of the curative acts. The assessment was, therefore,
not within the operation of those acts.

The judgment must be affirmed.

Judgment a^rmed.

Charles L. Pate, appellant, v. The People, appellees.

APPEAL FROM VERMILION.

All action of debt will lie upon a recognizance and the surety may
make surrender, and discharge the recognizance at any time before
judgment obtained.

The whole amount of the recognizance is recoverable ; courts cannot
relieve against the penalty of a recognizance.

This cause was heard bv Davis, Judo-e.

A. Lincoln, for appellant.

D. B. Campbell, State'o Attorney, for appellees.

Treat, C. J. This was an action of debt, brought by the
People against J. W. Pate and C. L. Pate, upon the following
recognizance : —

" State of Illinois, Vermilion County, ss.

" This day personally appeared before the undersigned, tvvo of
the justices of the peace in and for said county, Johnson W.
Pate and Charles L. Pate, and jointly and severally acknowl-
edged themselves to owe and be indebted unto the people of
the State of Illinois, in the sum of one hundred and fifty dol-
lars, to be levied of their respective goods and chattels, lands
and tenements, i£ default be made in the premises, and condi-
tions following, to-wit : Whereas the above bounden Johnson
W. Pate, on the 19th o£ July, A. D. 1851, was examined by and

222 SPRINGFIELD.

Pate V. The People.

before Samuel Huffman, a justice of the peace in and for the
county aforesaid, on a charge preferred against him for hircenj,
by feloniously taking and driving away one steer, the property
of John Bailey, and upon hearing the testimony of all the wit-
nesses present (they having been duly sworn), was adjudged
and required by said justice to give bonds, as required by the
statute in such case made and provided, for his apnearance to
answer said charge. Noav the condition of this recognizance is
such, that if the above bounden Johnson W. Pate, shall person-
ally be and appear before the circuit court of the said county of
Vermillion, on the first day of the next term thereof, to be
holden at the court house in Danville, on the third Monday of
October, A. D. 1851, and from day to day until • discharged by
order of said court, then and there to answer to the said people
of the State of Illinois, on said charge of larceny, and abide
the order and judgment of said court, and not depart the same
without leave ; then and in that case this recognizance to become
void, otherwise to be and remain in full force and virtue. As
witness our hands and seals, this 22d day of July, A. D. 1851.
Taken, entered into, and acknowledged before us this 22d dav
of July, A. D. 1851.

G. Merrill, J. P. Johnson W, Pate, [l. s.]

M. Lesley, J. P. C. L. Pate, [l. s.]"

Process was served on C L. Pate alone, and judgment was
rendered against him for the amount of reco2:nizance. The
record contains this agreement: "The parties agree that the
defendant may take the case to the supreme court, as upon
appeal, without bond ; as matter-of-fact, said Johnson W. Pate
did not appear in the circuit court as conditioned in the recog-
nizance, and a forfeiture was regularly taken and entered ; and
further, that the only questions for the supreme court shall be,
whether an action of debt can be maintained a2;ainst C. L. Pate
on said recognizance and forfeiture, either without or with addi-
tional averments ; and if held that the action can be maintained,
what is the measui-e of recovery; and that the judgment of the
court below shall be affirmed, reversed, or modified, according to
the opinion of the supreme court ; and that no further transcript
of the case shall be required "

By this stipulation, the pleadings are not before the court. We
have to decide whether an action of debt could be maintained on
the recognizance with appropriate averments ; and if so, what
amount could be recovered.

It is is well settled that debt will lie upon a recognizance.(a) It

(n) People v. Witt, 19 111. R. 171 ; Eimer v. Richards, 25 111. R. 253.

DECEMBER TERM, 1853. 223

Pate V. The People.

is an obligation to pay a sum certain. That provision of the
statute, -which authorizes a surety to surrender his principal in
discharge of the obligation, at any time before judgment is ren-
dered upon scz-i^e facias to show cause why execution shall not
issue for the amount of the recognizance, does not exclude the
common law remedy by action of debt. But a mere change in
the form of the action, will not deprive the surety of this right
to surrender the principal. He may make the surrender and dis-
charge the recognizance, at any time before judgment is obtained
in the action of debt. Milner v. Petit, 1 Lord Raymond, 720 ;
The State v. Folsom, 26 Maine, 209 ; Commonwealth v. Green,
12 Mass. 1. In this kind of action, as well as in the proceeding
by scire Jacias, the whole amount of the recognizance is recov-
erable. It matters not what may be the form of the remedy.
The sum named in the recognizance is forfeited, by a failure to
perform the condition. It is not like the case of an ordinary
bond, where the penalty is designed to enforce pecuniary liability ;
and where the amount really due, and not the penalty is recov-
erable. Courts have no power to relieve against the penalty of
a recognizance. Johnson v. Randall, 7 Mass. 3-iO ; Merrill v.
Prince, ib. 396 ; Commonwealth v. Dana, 14 ib. 65 ; The Stater.
Austin, 4 Humphrey, 213 ; Badger v. The State, 5 Alabama, 21.

If the justices had legal authority to take the recognizance
in question, it is clear that an action of debt, or a proceeding by
sci7'e Jacias, Avould lie upon it. That authority may not appear
on the face of the obligation, but it could be averred in the
declaration or scire facias, and proved on the trial. McFarland
V. The People, 13 111. 9. We can readily imagine a case in
which the justices had full power to take the recognizance.
The statute makes it the dut}^ of a magistrate committing a
person in default of bail, to indorse on the warrant the amount
in which bail may be given ; and it authorizes a judge or two
justices of the peace to take bail in vacation, and discharge the
accused from custody. R S. ch. 30, § 206. If the examining
magistrate indorsed on the warrant of commitment that bail
might be given in the sum of $150, the justices clearly had
the right to take the recognizance, (c/) The statute expressly
invests them with jurisdiction in such a case. It was compe-
tent for the people to allege such a state of case in the declara-
tion, and, if put in issue by the defendant, to prove it on the
trial. As the pleadings and proofs are not before us, we must
presume they were sufficient to justify the judgment of this court.

The judgment is affirmed.

Judgment affirmed.

{fi) Bulson V. People, 31 111. R. 414 ; Johnson v. People, 31 111. R. 4G9.

224 SPRINGFIELD.

lugalls V. Bulkley.

Darius Ingalls, appellant, v. Aristarchus Bulkley,
appellee.

APPEAL FROM MORGAN.

In replevin, the plea of non detinet admits the riglit of property tb be
in the plaintitf, and only puts in issue the detention by the defendant.

A party holding property, Avhich he refuses to deliver on demand
made, because'lie doubts'the authority of the person making the de-
mand, must place his refusal distinctly upon that ground.

If the refusal to deliver is placed upon other grounds, it furnishes
presumptive evidence of conversion.

The authority of the person making a demand may be rightfully
questioned, and if authority is not furnished, a refusal to deliver the
property -will not establish an uulaAvful detention.

The effect of an admission is a proper question for the consideration of
a jury.

This cause was heard before Woodson, Judge, at tlie March
term, 1853, of: the Morgan Circuit Court.

M. MoCoNNEL, for appellant.
D. A. Smith, for appellee.

Treat, C. J. This was an action of replevin, brought by
Bulkley against Ingalls, to recover the possession of a horse.
The declaration was in the de.tinet only, Plea, non detinet. A
witness testified, that the defendant told him some time after
the suit was commenced, that the plaintiff first sent his negro
boy for the horse ; that he afterwards sent Whittle for the horse,
and then the sheriff ; that he refused to let the negro or Whittle
have the horse ; that the plaintiff might have had the horse if
he had demanded him in person and paid the damages, but he
was afraid to come after his horse. It was proved that the
negro and Whittle were minors, and absent from the country
at the time of the trial. The court gave the following instruc-
tions at the request of the plaintiff, 1. "The ownership of the
horse is not in question in this case, and the plaintiff is not
bound to prove that the horse in question was his property.
2. It: the jury believe from the evidence, that the plaintiff
demanded the horse before the commencement of the suit, and
they shall further believe that the defendant knew, or did not
have reasonable grounds to doubt, that the persons who
demanded the horse were sent and authorized by the plaintiff to

DECEMBER TERM, 1853. 225

Ingalls V. Bulkley.

make the demand and receive tlie liorse, tlicy will find for the
plaintiff." The court refused to give the following instructions
asked by the defendant. "1. If the jury believ^e from the evi-
dence that the horse in controversy was found trespassing on
the defendant's field, and lie took him out of the field and put
him up to prevent the trespass, and thus had him in his posses-
sion, then this is not such a detention of the horse as to justify
a verdict in this case for the plaintiff ; unless the plaintiff" has
proven to the satisfaction of the jury that he demanded of the
defendant the horse in person, or by some responsible agent
known to the defendant to be such, before the commencement
of the suit, and the defendant unqualifiedly refused to give him
up. 2. To enable the plaintiff to recover in the case, he must
prove to the satisfaction of the jury that he was, at the time the
horse was detained, the owner thereof, and had a right to the
possession. 3. The admission of the defendant long after the
horse was demanded, that the plaintiff" had sent the negro boy
and the boy Whittle for the horse, is not of itself evidence that
he knew that the boys had authority from the plaintiff to de-
mand the horse." The jury found the issue for the plaintiff,
and the court overruled a motion for a new trial.

1. The plaintiff" was not bound to show title to the horse.
The plea of non detinet admitted the right of property to be in
the plaintiff", and it only put in issue the detention by the defend-
ant. The cases of Anderson v. Talcott, 1 Gilman, 365, and
Vose V. Hart, 12 Illinois, 378, are conclusive of the question.
The court, therefore, committed no error, either in giving t' -^
plaintiff's first instruction, or in refusing the defendant's secoi 3
instruction. (<3)

2. The defendant had no cause to complain of the plaintiff"'s
second instruction. It was as favorable to him as the law and
facts would warrant. He was clearly in fault in refusing to
surrender the horse to the boys, if he knew at the time, or had
good reason to know, that they were the agents of the plaintiff,
especially as he did not place his refusal on the ground of a
want of authority on their part. If there was any good reasoQ
to doubt their authority to make the demand and receive the
horse, he should have put his refusal distinctly upon that ground.
Such a refusal would not be sufficient evidence either of a con-
version, or an unlawful detention of the property. It would
compel the agents to produce their authority, in order to put
him in the wrong. But in the case of an unqualified refusal,

{n) Wells V. McClenning, 23 111. R. 410 ; Amos y. Sinuott, 4 Scam. 440
and notes.

226 SPRINGFIELD.

Ingalls V. Bulkley.

like the one proved in this case, it is enough to show on the
trial, that the property was demanded by the owner in person.
or through an authorized agent. This principle is well settled
by authority. It was said by Tilghman, C. J., in Jacoby v.
Laupatt, 6 Sergeant andRawle, 300 : "If one is in possession of
goods which he has found and does not claim, and a demand
being made by the owner, the possessor answers that he is not
satisfied of that person being the owner, but he is ready to de-
liver the goods on receiving reasonable proof of ownership, this
is not such a denial as will warrant the inference of a conver-
sion. On the contrary, it is such an answer as a prudent
man, consulting the interest of the owner, ought to give. So if
one who calls himself the agent of the owner, demands the
goods, and the possessor answers that he cannot deliver them
until he receives proof that he is really the agent, no conversion
can be inferred, because the answer shows nothing like an in-
tent to convert, but only a design to preserve the goods for the
use of the owner." Story, J., says, in Watt v. Potter, 2 Mason,
77 : " Where a demand is made by an agent, and the party re-
fuses to deliver to the agent, either because he has no authority,
or declines to produce it, such a refusal, under such circum-
stances, is not even evidence of a conversion, for every person
in possession of property has a right to retain it, until it is de-
manded by some person having, and if required, producing
competent authority to demand it. But if the refusal do not
turn upon the supposed want of authority, if the party waives
any inquiry into the authority, or admits its sufficiency, and
puts his refusal upon another distinct ground, which cannot in
point of law be supported, then the refusal under such circum-
stances, is presumptive evidence of a conversion." It was held
in Holbrook v. Wight, 24 Wendell, 169, where the partner of a
bailee refused to deliver goods to the owner, saying that he did
not feel authorized to deliver them in the absence of his partner,
that the bailee in an action of replevin brought against him for
the goods, could not object that the demandant did not exhibit
the evidence of his title ; that if that was the true reason for the
non-delivery, the partner should have said so, and if the refusal
had been made in good faith, the defendant would have been
protected. The cases of St. John v. O'Connell, 7 Porter, 466,
and Zachary v. Pace, 4 English, 212, sustain the same princi-
ple. It was also recognized by this court in Ingalls v. Bulkley,
13 Illinois, 315.

3, There were two good objections to the defendant's first
instruction. The first part had no application to the case, and was
therefore calculated to embarrass rather than aid the jury.

DECEMBER TERM, 1853. 227

Ingalls V. Bulkley.

'There was no evidence tending to show that the defendant
found the horse trespassing on his close, and took him up to
prevent further injury thereto. The latter part was objection-
able for the reason already given. The fact that the defendant
may not have known that the boys had authority from the
plaintiff to demand the horse, did not justify an unqualified re-
fusal to deliver him. If he had questioned their authority, it
might have been produced. If he entertained any doubt about
their right to act for the plaintiff, he should have put his refusal
upon that ground, and then the refusal would not have established
an unlawful detention.

4. The defendant's third instruction was rightly refused. The
effect of the admissions was peculiarly a question for the con-
sideration of the jury. It was for them to determine from all of
the declarations, whether the plaintiff had authorized the boys to
demand the horse, and whether the defendant was at the time
aware of that authority. It was competent for them to infer
from these admissions, that the defendant knew, or had good
reason to know, that the boys were the agents of the plaintiff.
At all events, that was a matter for the jury to decide, and not
the court.(a)

5, The court was right in refusing to grant. a new trial. The
plea admitted the horse to be the property of the plaintiff, and
he had only to prove the detention. The testimony was sufficient
to warrent the conclusion, that the defendant unlawfully detained
the horse from the plaintiff. He distinctly admitted that the
horse had been twice demanded by persons sent by the plaintiff,
and that he as often refused to surrender him. As he failed to
state that he put his refusal on the ground of a want of authority
in those persons to make the demand, or on any other ground
that would justify him in detaining the horse, the jury might
well conclude that the refusal was positive and unqualified ; such
a refusal as would be sufficient evidence to maintain trover or
replevin.

The judgment must be affirmed.

Judg77ient affirmed.

{it) Young V. Foute, 43 111. R. 39.

228 SPRINGFIELD.

Keel V. Bently. Sanforcl v. Gaddis.

Keel v. Bently.

An appeal, or writ of error, does not lie from an interlocutor}^ decree or
judgment. ('0

This was a motion to dismiss a writ of error.

Treat, C. J. Bently filed a bill in chancery against Keel to
obtain the title to certain real estate ; and an injunction issued
thereon, restraining Keel from selling or removing the growing
crops. Keel answered the bill, and moved for a dissolution of the
injunction. The court refused the motion, and referred the
cause to the master to take the proofs. Keel then sued out a
writ of error, which Bently now moves to dismiss.

The motion must be sustained. An appeal, or writ of error,
does not lie from an interlocutory decree or judgment. There
must be a final decision of a case before it can be removed into
this court ; such a decision as settles the rights of the parties in
respect of the subject-matter of the suit, and concludes them
until it is reversed or set aside. Cornelius v. Coons, Breese, 15;
Pentecost v. Magahee, 4 Scammon, 826 ; Hayes v. Caldwell, 5
Gilman, 33 ; Fleece v. Russell, 13 Illinois, 41. No such deci-
sion has been made in this case. The proofs are yet to be
taken ; and the case is yet to be determined on the merits. The
cause must proceed to a final hearing in the court below, before
either party can remove it into this court. The writ of error
will be dismissed.

Wi^it of error dismissed.

(f() Cornelius v. Coons, Beeclier's Breese R. 38 and note.

Nathan P. Sanford, plaintiff in error, v. John V. D. Gaddis,
defendant in error.

ERROR TO FULTON.

In actions for slander, the plaintiff must prove tlie words alleged ; other
words of like meaning, or equivalent words or expressions will not
suffice.

All the words need not be proved, unless it takes them all to' constitute
the slander.

DECEMBER TERM, 1853. 229

Sauford v. Gadclis.

Proof of additional words will not vitiate, unless they so qualify the

meanini;- as to remove the slander.
A count for words spoken allirmatively, is not sustained by jiroof of

words spoken interrogatively. Nor will words spoken to a person

sustain a count Avhich charges Avords spoken of a person.
To charge that slander was uttered liy the words, "You swore false,"

will not be sustained by proof, that the words uttered were, "You have

sworn false."

This cause was heard before Wilkinson, Judge, at January
term, 1853, of the Fulton Ch'cuit Court.

W. C. GoUDY, for phiintiff in error.

Julius Manning, for defendant in error.

Treat, C. J. This "was an action for slander, brought by
Sanrord against Gaddis. The declaration alleged that the de-
fendant said of the plaintiff, in referenco to testimony given by
him as a witness in a judicial proceeding, "You swore false."
The proof was, that the defendant said of the plaintiff, immedi-
ately after he had testified as a witness in the case referred to,
"You have sworn false." The coart excluded the evidence on the
ground of variance ; and that decision is assigned for error.

It is a well established rule in actions for slander, that the
allegations and proofs must agree. (<2) The plaintiff must prove
the v/ords alleged in the declaration, or so much of them as will
sustain his cause of action. It is not enough to prove other
words of like import and meaning. Equivalent words or ex-
pressions will not suffice. All of the words averred need not
be proved, unless it takes all of them to constitute the slander.
And proof of additional words will not vitiate, unless they so
qualify the words alleged as not to amount to the slanderous
charge. For example : if the words laid are, " He stole a large
amount of money," the action is sustained by proof of the
words, " He stole money." The words proved are those alleged,
and they are of themselves actionable. iSo if the words laid are,
" He is a thief," the declaration is supported by proving the
words, " He is a thief, for he stole money." The words alleged
are proved, and their sense is not varied by the additional words.
But if the words laid are, " He is a thief," proof of the words,
" He is a thief, for he bought property, and refused to pay the
price," will not sustain the action. The additional words so qualify
those alleged, as not to impute the crime of larceny. A count for
words spoken affirmatively, is not sustained by proof of words spok-
en in the way of interrogatory. And proof of words spoken to a per-

(a) Norton v. Gordon, 18 111. R. 39 ; Wilborn v. Odell, 29 111. E. 458 ;
Crotty V. Morrissey, 40 111. R. 479 ; Baker v. Young, 44 111. R. 45.
ILL. R. VOL. XV. 16

230 SPRINGFIELD.

Ay res v. McConnel.

son, will not support a count for words spoken of a person. Mait-
land V. Gouldney, 2 East, 426 ; Rex v. Berry, 4 Durnford and
East, 217 ; Barnes v. HoUoway, 8 ib. 150 ; Opwood v. Barkes,
4 Bingham, 261 ; Johnson v. Tait, 6 Binney, 121 ; Fox v. Van-
derbeck, 5 Cowen, 517 ; Olmstead v. Miller, 1 Wendell, 506 ;
Williams v. Bryant, 4 Alabama, 44 ; Easley v. Moss, 9 ib. 226 ;
Wheeler v. Robb, 1 Blackford, 330 ; Linville v. Earlywine, 4 ib.
469 ; Crulman v. Marks, 7 ib. 281 : Watson v. Meesick, 2 Mis-
souri, 29 ; Berry v. Dryden, 7 ib. 324 ; Slocum v. Kaykendall,
1 Scammon, 187 ; Patterson v. Edwards, 2 Gilman, 720.

In this case, the words proved, under the circumstances of the
speaking, had the same meaning as those laid in the declaration,
and equally imputed the crime of perjury. But they were not the
same words. They were at most only equivalent words. They
were not in themselves actionable. There was a clear variance
between the words laid and those proved, and the court was right
in excluding the evidence from the jury.

The judgment must be affirmed.

Judgment affirmed.

Hescarick Ayres, appellant, v. Murray McCoxnel, Admin-
istrator of Charles Collins, appellee.

APPEAL FROM MORGAN.

When a deed recites that full pa.ymeut of the consideration for the land
conveyed has been received, it is prima facte evidence of the fact ; hut
this evidence may he rebutted by other proof

A note transferred by delivery merely, cannot be set off by the holder,
in an action against him by a third party. The holder could not sue
upon the note in his own name, and it therefore was not a legal sub-
sisting cause of action in his favor.

AVhere a party is in quiet possession of land conveyed to him by deed
in which the wife has not joined, he is not entitled in an action against
him to claim credit on account of dower interest, where proceedings
have not been commenced by the widow to obtain such interest.

This cause was heard at the Morgan Circuit Court, at Sep-
tember term, 1852, Woodson, Judge, presiding.

D. A. Smith, for appellant.

DECEMBER TERM, 1853. 231

Ayres v. McConncl.

M. McCosNEL, pro se.

Treat, C. J. This was an action of debt, brought bjMcCon-
Tiel, administrator of Charles Collins, against Rescarick Ayres.
The declaration contained the common counts. The pleas were
nil debet, and set-off. The plaintiff read in evidence the fol-
lowing instrument : —

*' Due Charles Collins for a four-mule team and wagon, $600 ;
and a carriage and harness, new at Richards, $100 ; making in
all $700. And from this amount my account, as soon as it can
be ascertained, is to be deducted. Naples, April IB, 1839.

Rescarick Ayres."

He then proved by Richards, that in December, 1838, Collins
sold Ayres two lots in Naples for $2,400, one half of which was
paid in demands of Ayres against the witness, one fourth in a
mule team, and witness did not know how the remaining fourth
was paid ; Collins got a pair of horses from Conover, worth $100,
and sold them to Ayres ; witness had an impression that Ayres
owed Collins $500, at the time of his death, in 1819, but was
never present at any settlement between them ; Ayres sold the
Naples lots to Whitelaw for $2,400, and Whitelaw sold them to
Mooers, who was in possession ; Collins sold the mule team back
to Ayres, and took the note ; he agreed to pay Ayres for the use
of the team while he had it, and that Avas the account to be
deducted from the note.

The defendant introduced the following evidence : A note
for $160, made by Collins to Ayres in 1835 ; a note for $200,
made by Collins to Delahay in 1839, transferred by delivery to
Seeley, and by Seeley in the same manner to Ayres ; a deed of
general warranty from Collins to Ayres for the Naples lots,
which recited the payment of the purchase-money, $2,400. The
deed was not executed by the wife of Collins. Ayres claimed
damages on account of the dower interest of the widow, but it
■did not appear that she had ever made any claim to the lots.
Alfred Ayres testified, that in 1835, Ayres sold Collins one half
of a bay trotting mare for $300 ; in 1837, two roan horses for
$225 ; in 1838, two bay mares for $300, which Collins after-
wards sold to Delahay ; in 1839, two grey horses for $150 ; in
1838-9, Ayres kept and doctored two horses for Collins for one
year, which was worth $80 ; in the spring of 1839, Ayres agreed
to furnish Collins a four-mule team, wagon, and driver for one
year, for the use of which Collins agreed to give him $1 ,000 :
the team, wagon, and driver, were in the service of Collins till
some time in the following winter. Delahay testified, that in
the winter of 1838-9, he bought a pair of bay mares of Collins

232 SPRINGFIELD.

Ayres v. McConnel.

for $300, and understood lie had got tliem from Ayres ; between
1837 and 1840, a mule team and driver were in tlie service of
Collins at Naples, and witness understood that he had hired
them of Ayres at the rate of $1,000 per year ; witness often
laughed at Collins for agreeing to pay such a price for the use of
them.

The jury returned a verdict in favor of the plaintiff for $651.
The court refused to grant a new trial, and rendered judgment
on the verdict.

1. The plaintiff was not entitled to recover any portion of the
purchase-money of the Naples lots. The deed of the intestate
recited full payment of the consideration. This acknowledgment
furnished prima facie evidence of payment, and there was
nothing in the case to destroy the presumption, («) It was not a
fair inference from the testimony of Richards, that any part of
the purchase-money remained unpaid. It was, indeed, competent
for the plaintiff to explain this statement in the deed, and show
that the consideration had not in fact been paid. But the burden
of proof was upon him. Bowen v. Bell, 20 Johns. 338 ; Watson
V. Blaine, 12 Sergt. & Rawle, 131 ; Clapp v. Tirrell, 20 Pick.
247 ; Meeker v. Meeker, 16 Conn. 383 ; Beach v. Packard, 10
Verm. 96 ; Burbank v. Gould, 15 Maine, 118.

2. The defendant was not entitled to any credit on account of
the note made by the intestate to Delahay. It was transferred
by delivery merely, and not by indorsement in writing. The
legal interest in the note was therefore still in Delahay, in whose
name alone could an action be maintained upon it. A party
cannot set off a demand, that is not a subsisting cause of action
in his favor. As the defendant could not sue upon the note in
his own name, he was not entitled to introduce it by way of
set-off. (6)

3. Nor was the defendant entitled to any credit on account
of the dower interest of the widow in the Naples lots. It did
not appear that she had instituted any proceedings to enforce her
claim. On the contrary, it appeared that the defendant's gran-
tee was still in the quiet enjoyment of the property. There was,
therefore, no breach of the covenant of warranty. It may be,
that the widow will never insist upon her right to dower. The
covenant of the intestate will not be broken until she does.

4. Exclude these matters from the case, and the finding of
the jury was clearly erroneous. The plaintiff only proved two
items of his account, amounting to $1,100 ; while the defendant
proved an indebtedness against the estate to an equal, if not a

(o) Kimball v. Walker, 30 III. R. 482 ; Illinois Central Ins. Co.®. Wolf,
37 111. R. 355 ; Brown v. Welch, 18 111. R. 347 and notes,
(ft) Kelly V. Garrett, 1 Gil. R. 049.

DECEMBER TERM, 1853. 233

Sullivan v. The People.

greater ameunt. The impression of Ricliards that the balance
was in favor of the estate, was not a sufficient basis for the ver-
dict, as he did not pretend to be familar with the business
transactions of the parties, and stated no facts conducing to
prove his impression to be well founded. The court should have
granted a new trial.

The judgment must be reversed, and the cause remanded.

Juc/^meni reversed.

Patrick Sullivan, plaintiff in error, v. The People, defend-
ants in error.

ERROR TO MACOX.

An affirmative statute is a repeal by implication of a prior affirmative

statute, so far as it is contrary thereto.
In Illinois, the repeal of a repealing statute does not revive the jDrior

existing laws.
The law of 1853, relating to the selling of liquor, revived the law as it

stood in 1845, and restored authority to grant licenses, and to punish

for retailing lic^uor without license.

This cause was heard before Emerson, Judge, at October
term, 1853, of the Macon Circuit Court.

A. Lincoln, for plaintiff in error.

Ela:vi Rush, State's attorney, for the people.

Treat, C. J. Sullivan was indicted for selling spirituous
liquors in a less quantity than one quart, during the month of
May, 1853, without having a license to keep a grocery. He
was tried, and found guilty. The court refused a motion in
■arrest of judgment, and iined him ten dollars. He sued out a
writ of error.

The only question in the case is, whether § 132, of the crimi-
nal code, is now in force. That section reads thus : " Every
person who shall not have a legal license to keep a grocery,
who shall barter, exchange, or sell any wine, rum, brandy, gin,
whisky, or other vinous, spirituous, or mixed liquors, to any
persons or persons, by a less quantity than one quart, shall, on
conviction, be fined for every offense ten dollars." The 64th
>ch. R. S. authorized county commissioners' courts, and trustees

234 SPRINGFIELD.

Sullivan v. The People.

of incorporated towns to grant licenses to keep groceries ; and
provided that every person selling any vinous, spirituous or
mixed liquors in a less quantity than one quart without having
such license, should forfeit ten dollars for each offense, to be re-
covered by action of debt before a justice of the peace. It
further provided that a judgment under either of these provis-
ions, should be a bar to a prosecution under the other. Such
was the law in 1845.

The act of the 1st of February, 1851, repealed "All laws and
parts of laws authorizing licenses to be granted to keep groce-
ries, or for the sale of vinous, spirituous, or mixed liquors ;" and
provided that every person selling any such liquors by a less
quantity than one quart, should forfeit twenty-five dollars for
each offense, to be recovered by indictment, or by action of debt
before a justice of the peace. This act was a virtual repeal of
§ 132 of the criminal code. The two laws were clearly incon-
sistent, and could not stand together. In such a case, the latest
statute must prevail. An affirmative statute is a repeal by im-
plication of a prior affirmative statute, so far as it is contrary
thereto. The case of Eex v. Cator, 4 Burrow, 2026, is precisely
in point. A statute inflicted a fine of £100 and three months'
imprisonment for enticing artificers abroad ; and a subsequent
statute inflicted a fine of of £500 and twelve months' imprison-
ment for the same offense. The court held the latter statute to
be a virtual repeal of the former. So in Leighcon ?;. Walker, 9
New Hampshire, 59, the court held that a statute imposing a
penalty of $30 for taking illegal fees, was in effect repealed by
a later statute imposing a penalty of $50 for the same offense.
And in Nichols v. Squire, 5 Pickering, 168 ; Commonwealth v.
Kimball, 21 ib. 373 ; The State v. Whitworth, 8 Porter, 434 ;
and Buckalew v. Ackerman, 3Halsted, 48, it was decided that
a statute imposing a new penalty for an offense, was an im-
plied repeal of so much of a prior statute as imposed a different
penalty for the same offense.(a)

The act of February 1, 1851, was expressly repealed by an
act passed on the 7th of February, 1853. But the laws re-
pealed by the former act were not thereby revived. Oar stat-
ute has changed the common law in this respect. It declares
that "No act, or part of an act, repealed by another act of the
general assembly, shall be deemed to be revived by the repeal
of such repealing act." R, S. ch. 90, § 26,

It is provided by the act of the 12th of February, 1853, "That
all laws, or parts of laws, which were in force in relation to the

(^0 Town of Ottawa v. County of La Salle, 12 111. K. 341 and notes.

DECEMBER TERM, 1853. 235

Sullivan v. The People.

granting of license to persons for the purpose of retailing spirit-
uous, vinous, or mixed liquors, at the time of the passage of an
act entitled 'An act to prohibit the retailing of intoxicating
drinks,' approved February 1, 1851, be, and are hereby re-en-
acted and in full force and efiect, as if never repealed. We think
it was the intention of the legislature to revive the law as it stood
in^l81:5, authorizing licenses to be granted to keep groceries,
and imposing penalties for selling spiritous liquors in a less (quan-
tity than one quart, without such license. It was the design not
only to restore the authority to grant license, but the power to
inflict punishments for retailing liquors without license. In other
words, it was a return to the former system ; a re-enactment of
all the statutes on this subject, in force at the time of the pas-
sage of the act of the 1st of February, 1851. A different view
of the case would impeach the wisdom of the legislature. The
authority to grant licenses would be wholly useless, without the
power to restrain persons from retailing spirituous liquors with-
out license. A man would not procure a license to retail liquors,
when he could do the same thing without it. He would not there-
by obtain any advantage over others having no license. The
consequence would be, that every person might sell spirituous
liquors in any quantity with impunity. Such an interpretation
ought not to be put upon the action of the legislature, unless it
manifestly appears that such was the design. The language of
the act of the 12th of February, 1853, indicates no such inten-
tion, and demands no such cftustruction. It expressly re-enacts
all laws and parts of laws in relation to the granting of licenses
to retail spirituous liquors, which were in force at the time of the
passage of the act of the 1st of February, 1851. The 132 d sec-
tion of the criminal code was then in force, and it had relation to
that subject-matter. ItVas part and parcel of the same system.
It was one of the means employed to render the system effective.
In our opinion, this provision of the criminal code is now in full
force. (a) It follows that the judgment of the circuit court must
be affirmed.

JudgmcJil affirmed.

(a) But this law does more than revive the law of 1845. _ It prohibits
the sale of liquor by a less quantity than one crallon wi'thout license.
Bennett v. People, 16 111. R. IGl ; Carmody v. People, 17 111. K. 159.

236 SPRINGFIELD.

Warren v. The President, &c. of the Town of Jacksonville.

William B. Warren, plaintift ia error, v. The President and

Trustees or the Town of Jacksonville, defendants in
error.

ERROR TO MORGAN".

The public is an ever-existing grantee, capable of taking dedications
for public uses, and its interests are a sufficient consideration to sup-
port them.

Parol dedications are good.

The intention of a party, manifested by express consent, or acquiescence
in the user, will govern in determining what is a dedication.

Privies in estate will be bound by the deeds and acts of their grantors,
and they cannot resume a grant after the public has entered upon its
use, while the use continues.

A deed cannot be delivered and accepted partially, for the purpose of
conveying title to the grantee, and yet so as not to give effect to the
conditions, recitals, and limitations in it.

It will be presumed that deeds duly acknowledged and recorded, have
been delivered to and accepted by the A^endee, and that parties and
privies aswell as the public, are acquainted with their contents. Who-
ever questions these facts, must assume the burden of proving them.

A right by prescription cannot be raised against the consent of the
owner ; but the use may be so long unobjected to, as to authorize the
finding of an implied consent, and to raise a presumption of a grant.

In actions of ejectment in this State, the general issue only shall be
pleaded.

No inference or conclusion will be drawn in this State against the owner
of land lying uninclosed, which is traveled over, to establish an ease-
ment in favor of the public. ,

This cause was tried before Woodson, Judge, at September
term, 1852, of Morgan Circuit Court..

M. McCoNNEL and W. IIerndon for plaiutiiTin error.

D. A. Smith, for defendants in error.

Scates, J. Warren brought ejectment for a piece of land
lying in west half N. E. quarter sec. 20, T. 15 N., R. 10 west,
and described and bounded as follows, "beginning on the
north line of the public road, called the State road, and running
east and west across said tract of land, and at a point where
said public road passes the east line of said tract of land, and
running from thence west, one hundred feet, more or less, to the
east side of a lot of land whereon stands a small church, now
called the Universalist church, and from that line thus described,
said land extends north to the north boundary of said tract of

DECEMBER TERM, 1853. 237

Warren v. Tlie President, &c. of the Town of Jacksonville.

land of which it is a part, retaining the same width as the south
front, of one hundred feet." Title is traced and admitted from
the United States through the patentee and Dr. Chandler to
Joseph Duncan, to the premises. And that in June, 1841, the
United States recovered judgment against Duncan, and that
the premises were levied upon, and sold to Warren, on the 5th
day of October, 1847, and conveyed by the United States
marshal for the district of Illinois. It was also in proof, that
on the 29th of October, 1835, Joseph Duncan and wife conveyed
one undivided fourth of a piece of land to Thomas T. January,
embracing so much of the above premises as lies between the
line of Court street on the south, and North street on the north,
(and called Railroad square,) — and that in said conveyance was
this agreement, "and it is agreed that all of said streets, and
another street to be called Railroad street, are to run through,
and be kept open, through said square ; but it is agreed that if
a sale of any privilege can be eflected to the railroad company,
for the erection of buildings on said square, it shall in no case
obstruct a street ; the proceeds are to be divided, one-fourth to
said January, and three-fourths to said Duncan, and for all other
purposes, it is agreed the said square shall be kept open for pub-
lic use."

It was further proven, that on the 26ih. of September, 1836,
Thomas T. January and wife conveyed to Joseph Duncan, lots
8, 9 and 10, in Johnson's addition to Jacksonville, and " also
all the interest which the said January holds in the Railroad
square," (the lands described in the foregoing deed,) "laid oflf
by said Duncan on the lauds bought of Dr. E. Chandler, one
half of which was deeded by said Duncan to said January, but
in reconveying his interests in said square to said Duncan, it is
understood that the said Duncan is to open Church street, as
far north as lot number twenty-one in said Johnson's addition,
or to xsorth street, and has full power to close the said square,
or to sell or dispose of it, as he, the said Duncan, may think
proper." It was in proof that Warren had seen this deed be-
fore his purchase. That Duncan had a private unrecorded plat
of these lands among others, upon which the premises were
marked "Duncan's." That part of the premises had always
laid open, and part had been used and traveled by the public
for three years before Duncan's death, and hitherto, for more
than seven years, and was as much in the use and possession
of the public, as streets by working on the same, and claiming
it as such. In 1835, a church was built on the lot on the west,
and the lot on the east side was inclosed.

The plaintiff excepted to the modification by the court of his

238 SPRINGFIELD.

Warren v. The President, «fcc. of the Town of Jacksonville.

seventh instruction, whicli''was as follows : " The question to
be determined by this jury is, whether Warren or any of the
former owners of this land, has given and dedicated said land
to the public, as a public street of the town of Jacksonville ;''
and to enable the jury to find that said gift or dedication has
been made, it must be proved to their satisfaction, that some
act has been done by some one of said owners, "or such an
acquiescence in the use of the land by some of them," clearly
indicating the intention to make said land a public street ; and
the bare fact that said land was left open, and the people
traveled over it, is not of: itself sufficient to establish such gift
or dedication.

The court refused the following instructions, which was ex-
cepted to: 2d. Private property cannot be taken for public use
without due compensation first made to the owner of the same ;
and this land having belonged to Chandler and Duncan, and
now to Warren, cannot be taken, and could not heretofore have
been taken by the incorporation, or the people of the town of
Jacksonville, and converted into a public street, without the
consent of said owners, or without first paying for said land.

3d. The deed from January and wife to Duncan, of certain
lots of land in McHenry Johnson's addition to the town of
Jacksonville, wherein January recites that Duncan is to open
Church street as far north as North street in Jacksonville, and
without saying how far south said street is to be opened fi'om
North street, is not sufficient evidence to prove that Duncan did
give and dedicate said land to the public, as a public street,
commencing on the south at State street, and running north to
said North street. Said deed is not evidence ot: any thing
whatever, unless it is proven that Duncan received said deed
from January, and that said recital in said deed was known
to Duncan when he received the deed, and that the same was the
result of, and in pursuance of the contract and agreement made
by Duncan with January, as a part ol: the consideration of said
deed, and as a part of said contract in the purchase of said lots
of land.

4th. The incorporation of Jacksonville or the people, being
desirous to open a public street through the" private property of
any citizen, may do so by laying out the street, and having the
value of the right of way over the land appraised by disinterested
persons, and said value paid for, before said street is opened;
but they cannot because said land is left open by the owner,
enter upon the land, and without the express consent of the
owner, convert said land into a public street, without paying for
the land ; and length of time, however long said land may be

DECEMBER TERM, 185B. 239

Warren v. The President, &c. of the Town of Jacksonville.

traveled over and used without the consent of the owner, is not
sufficient to establish said land as a public street.

The plaintiff also excepted to the following instruction for the
defendant : If January and wife made to Duncan the deed offered
in evidence by the defendants, and that at the date of that deed
Church street was opened from State street to North street, and
has so continued from that time up to the time of the institution
of this suit, and hath, during all that time, been used by the
public as a street, without let, hindrance, or objection of the
owners of the land in controversy in this case, that from these
circumstances the jury may infer a dedication of the land in
controversy to the public, to be used as a street ; and the jury
may, if they see fit, find a verdict for the defendants, notwith-
standing the plaintiff may have established his fee-simple title to
the land in controversy.

The jury found a verdict for the defendants, and a second new
trial was refused.

We shall decide this case upon the question of dedication by
January and Duncan, and to which Warren is' a privy by deriving
title through them, and of which he had both actual and construc-
tive notice. We are of opinion that the recital of the agreement
in January's deed to Duncan, reconveying the interest in the
Railroad square is sufficient evidence of a dedication for Church
street, from State street to North street, when taken in connec-
tion Avith the recitals of dedications for similar purposes in Dun-
can's prior deed to January, and the subsequent acts of the public
in using, claiming, and working the same as a street for seven
years, three of which were in the life of Duncan, to authorize
the jury to find for the defendants to that extent. Duncan had
agreed, in conveying this interest to January, that " all of
said streets, and another street, to be called Railroad street, are
to run through, and be kept open, througli said square ; and a
sale of any privilege to the railroad," '* shall in no case obstruct
a street," and that " the said square shall be kept open for public
use."

These facilities of public easements of way through the Rail-
road square, may have been of particular advantage to January
as a lot holder, as well as a general advantage to the town and
community, and to this end they might constitute an essential
element of the value of the interest he acquired under the deed.
So again, when he sold the same interest back to Duncan, with
three other lots, part of the consideration seems to have been an
additional easement of way to the public by extending Church
street. This last easement presents a more prominent considera-
tion, in the fact, that he consents that Duncan ma}'' " close the

240 SPRINGFIELD.

Warren v. The President, Szc. of the Town of Jacksonville.

said square," and thereby destroy all the easements created by
Duncan's deed to him.

This street might confer great value to other lots of January,
as well as be of great advantage to him in their use and enjoy-
ment. Taking the two deeds together, it is very evident that the
parties intended to increase the facilities of their own enjoyment
of this and other town property, if they had any, or to add to
its value by creating these streets. It would be unjust to allow
either party, at pleasure, to despoil the other of these advan-
tages, or to reclaim them of the community after a long use and
enjoyment under such an appropriation for their benefit. 12
Wheat. R. 582. The public is an ever existing grantee, capable
of taking dedications for public uses, and its interests are a sufn-
cient consideration to support them. City Cincinnati v. Lessees
of White, 6 Pet. R. 431.

The mode of making dedications is immaterial. They are not
Avithin the statute of frauds, and are good by parol. Godfrey v.
City of Alton, 12 111. R. 35. The intention of the party, man-
ifested by express consent, or acquiescence in the user, will govern
in determining -whether it be a dedication. 6 Pet. R. 431 ; 12
111. R. 35. (a)

Warren is privy in estate with Duncan, and must be bound to
the same extent by these deeds and acts under them, and it is
not in the power of either to resume this grant after the
public have entered upon the use designed, nor while it is so
used.

We see no solidity in the objection that the deed contemplated
a future act of Duncan to make a dedication. The acceptance
of the deed, we think sufficient to dedicate, or at least to sustain
a verdict so finding. That Duncan accepted the deed, we
are not at liberty to doubt from the proofs. We find this deed
on record, the land marked as his on his private map, and
the public using the land as a street, some years before his
death.

To defeat the dedication upon the ground of non-acceptance
of the deed, would, indeed, be to defeat the title of Duncan
under it. If the deed has not been delivered and accepted, it is
inoperative. It might have' been delivered to a third person and
accepted as an escrow. But it could not be delivered and accepted
partially, for the purpose of conveying title to Duncan, and yet
so as not to give effect to the conditions and recitals and limita-
tions. We must, under the proofs, presume a delivery and
-acceptance, and consequently must presume Duncan cognizant of
the contents of the deed.

The modification of the seventh instruction, we think cor-

(a) Rees v. City of Chicago, 38 111. R. 338.

DECEMBER TERM, 1853. 241

"Warren v. The President, «&c. of the Town of Jacksonville.

rect. Sucli an acquiescence in the use of the public by an
owner of hind as clearly indicates an intention to dedicate, may
warrant a jury in finding a dedication under the proofs in this
case.

The second instruction, refused, is faulty in assuming title in
Warren, for that was the question in controversy. We see no
other objection to it.

The court have already laid down and approved of principles
in relation to the acceptance of the deed by Duncan, which
militate against the third instruction refused by the court. We
must indulge the presumption that deeds duly acknowl-
edged and recorded, have been delivered and accepted, as
well as executed by the vendor, and parties and privies, as well as
the public, are acquainted with their contents. Whoever ques-
tions any of these facts must assume the burden of proving
them.

The fourth instruction should have been given. It is very
broadly worded, but does not preclude the acquisition of a right
by prescription. A right by prescription cannot be raised against
the consent of the owner ; but the use may be so long unobjected
to, as to authorize the finding of an implied consent, and to raise
a presumption of consent, and even of a grant. The instruction
given for defendants is correct.

It is objected that this deed is used by way of estoppel under
the general issue, which is inadmissible, and that it should have
been set up by special plea. Without investigating the doctrine
of special pleading in ejectment, we deem it sufiicient to refer to
the statute of our own State, Avhich provides that the general
issue only shall be pleaded ; under which the same matter may
be given in evidence as under the common law action of eject-
ment, except proofs of oomc fictitious matters, which are abolish-
ed. Rev. Stat. 1845, p. 206, § 17. (a)

The verdict is not warranted by proofs and the law, for that
portion of the land lying northward from lot twenty-one, or
North street. This portion is not included in the dedication.

The use and occupation o£ this portion is only about seven
years, without any proof of assent or dissent. It was over lands
lying uninclosed and in common. While so much land lying in
common in this country, remains free to public uses and travel,
until circumstances induce owners to inclose, we can deduce no
strength of inference or conclusion from mere travel across it by
the public, without objection from the owner. It is neither the
temper, disposition, fashion, or habit of the people, or custom of
the country, to object to community enjoying such privilege, until
owners wish to inclose.

(«) But see Laws of 1855, p. 138.

242 SPRINGFIELD.

Slack V. McLasran.

This use'is not shown to have been adverse, and upon a claim
of it as an easement, for it does not appear that any owner ever
desired to use any part of the tract to which it belonged. We
are of opinion that the prescription for a right of way over this
portion is not sustained, and that the verdict therefor is not war-
ranted by the evidence.

Judgment reversed, and cause remanded, with venire de
novo.

Treat, C. J., concurred in reversing the judgment.

Judgment reversed.

James T. Slack, plaintiff in error, v. Robert McLagan, defend-
ant in error.

ERROR TO FULTOK

It is a sufficient defense to an action upon a note to set up a breach of

a covenant of warranty in a deed of land, for tlie price of Avhicli the note

was given. (rt)
Courts of law and equity will give relief against the frauds of a

vendor of real estate, by refusing an enforcement of the contract.
The facts constituting a fraud should be set forth in a pleading.
A decree or a judgment for the purchase money does not necessarily

imply a vendor's lien.
All evidence tending to prove the material ftxcts, or either of them, in a

case, is admissible, although it may not alone establish the whole case.
[A clerk's certificate under his private seal is admissible.]

This was an action of debt commenced by the defendant in
error against the plaintiff in error, on three promissory notes, in
the Fulton Circuit Court, on the 5th of February, 1850.

The declaration contained nine special counts and the usual
common counts. A general demurrer was sustained to the 3d
and 6th counts, and was overruled to the 9th count.

The defendant pleaded 7io7i est factum to the first, second,
forth, fifth, seventh, and eighth counts, and offset to the same,
with the addition of the ninth and common counts.

The defendant also pleaded eight special pleas, numbered from
nine to sixteen, both inclusive, to the first, second, fourth,
fifth seventh, eighth, and ninth counts ; these pleas are as fol-
lows : —

1. The 9th plea avers, that the notes sued on were obtained
by fraud and circumvention ; in this, at the time of the execu-
tion of the notes the plaintiff and defendant were joint owners and

(ff) B ut see Vining v. Leeman, 45 111. R. 248.

DECEMBER TERM, 1853. 243

Slack V. McLagan.

partners in a steam mill ; that the notes were given by the de-
fendant for the plaintiff's interest in the mill ; the defendant
assuming the payment of the debts due by the firm.. As a part
of the same agreement, the partnership was dissolved, and the
notes executed ; that the plaintiff induced the defendant to
make the agreement by falsely and fraudulently representing,
that the debts due by the firm did not exceed much, if any, the
sum of $2,100.

2. The 10th plea avers, that before and at the time of the
•execution of the notes sued on, the plaintiff and defendant were
the owners of and partners in a certain steam mill, known as
the Franklin mills ; that as such they carried on business, con-
tracting debts due to and from the firm ; that in the transaction of
the business the plaintiff had exclusive control of the finances
and contracted all the debts, and that the defendant had the
management of the mechanical part of the business, and had
no knowledge of the contracts, debts, and accounts.

The plea further avers, that on the day of the date of the
notes the plaintiff proposed to the defendant to dissolve the part-
nership ; that the defendant should have all debts due the
firm, pay all debts due from the firm, and that the defendant
should purchase the plaintiff's interest for the amount of the
three promissory notes and execute his notes therefor, and that
the plaintiff with a design to defraud the defendant, represented
falsely and fraudulently, that the debts did not exceed $2,100.

The plea then avers, that defendant was induced by this rep-
resentation to accept the proposition and to execute the notes,
and so charges that they were procured by fraud and circum-
vention.

3.- The 11th plea sets up a failure o£ consideration, in this,
that the notes were executed in consideration of the plaintiff's
interest in a certain mill, and the tract of land on which it was
situated, and that at the sa,me time the plaintiff conveyed by
deed the premises to the defendant, with a covenant to warrant
and defend the title to the premises against all persons whom-
soever ; that the plaintiff did not have then, nor since, any legal
title to the premises ; but on the contrary, the plaintiff had only a
bond for a deed from one Thornton Easley, from whom the plain-
tiff and defendant purchased, conditional for the execution of a
deed on the payment of the purchase-money.

The plea then avers that the plaintiff failed to pay the pur-
chase-money or to procure a deed, but that the premises were
sold under the order of the proper court to satisfy the debt.

4. The 12th plea sets up failure of consideration in this, the
|/laintiff and defendant were partners in the milling business in

SPRINGFIELD.

Slack i\ McLagan.

Haywood county, Tennessee ; the plaintiif hired hands and
made the contracts ; that the defendant Avorked the hands and
run the mill; that the defendant had no knowledge of the
the debts contracted except through the information of the
plaintifl'.

The plea then avers the same proposition and representation
by the plaintiff, as stated in the 10th plea, and that the plaintifl"
exhibited a balance sheet showing the liabilities of the firm at
$2,091.50 ; that the defendant under this inducement accepted
the ofier.

The plea then avers that the debts did exceed the sum of
$2,100, and that they were more than $7,000; and that the
interest of the plaintifl" was worthless, which was known to the
plaintifl" and unknown to the defendant ; that the defendant has
been compelled to pay the said sum of $7,000, which has ex-
hausted the whole of the partnership property and funds,
besides a large sum of the defendant's private funds.

5. The 13th plea also sets up failure of consideration in this,
that the consideration of the notes was the sale of a certain
tract of land, describing it, and that at the time (which was the
same time the notes were executed) the plaintifl' fraudulently
and deceitfully represented to the defendant that he had a good
title, when in truth he had no title whatever then, nor has he
since had, and that the plaintiff knew that such representation
was false.

6. The 14th plea is also for failure of consideration in this,
that the consideration of the notes was the sale of the tract of
land described in the 13th plea, and that afterwards, on the od
day of June, 1819, the plaintiff" executed and delivered his deed,
in consideration of five thousand dollars, conveying the premises
to the defendant, in which the plaintiff covenanted that he would
warrant and defend the title against the title, claims, or demands
of all and every person or persons whatsoever claiming, through,
under and by said plaintiff.

The plea then avers that the land was S()ld by virtue of a
decree of a court of chancery, in and for the State of Tennessee,
at Brownsville, on the 10th November, 1811, for the purchase-
money due to one Thornton Easley, from the plaintiff or some
other persons.

7. The 15th plea sets up failure of consideration in this, that
the consideration was the sale of the tract of land described in
the 13th plea ; that the plaintiff" conveyed the land by deed with
covenant, as stated in the 11th plea, and that the land was
legally sold to satisfy a debt of the plaintiff's, and some other
persons, for the purchase-money due one Thornton Easley, for

.DECEMBER TERM, 1853. 245

Slack V. McLagan.

-the same tract, and so the title has failed by virtue of a claim
against and under the plaintiff.

8. The 16th plea is for failure of consideration in this, that
the consideration of the notes sued on was the sale of the tract
of land described therein ; that on the 3rd day of June, 1830, the
plaintiff conveyed by deed the said tract to the defendant, and
thereby for the consideration of five thousand dollars, did give,
grant, bargain, sell, release, convey, and transfer to the defendant,
his heirs and assigns, the tract of land particularly described in the
plea, and did by the same deed covenant " to and with the defen-
dant, his heirs and assigns, that the title to the above described
■tract, piece, or parcel of land, he the said plaintiff would Avarrant
and forever defend against the title, claim, and demand of all and
every person or persons whatsoever claiming through, under,
and by the said plaintiff."

The plea then avers a breach in this covenant ; because he
says that at the time of said sale there was due and owing from
the plaintiff and the defendant, as partners to one Thornton Eas-
ley, a sum of money for the purchase-money of the premises, the
same having been bought of the s^-id Easley by the plaintiff and
defendant, " which sum of money was a lien on said premises,
and said premises were legally sold to satisfy said lien, and the
said defendant was ousted and ejected from said premises," and
so the plaintiff broke his covenant.

The plea then claims damages, and prays that they may be
offset against the plaintiff's demand.

The plaintiff joined issue to the country on the pleas of non
esi Jactutn and offset, and demurred generally to the 9th, 10th,
11th, 13th, 14th, and 15th pleas, and generally and specially to
the 12th and 16th pleas.

The demurrer was overruled as to the 12th and 16th pleas,
and sustained to all the rest ; the defendants abided by the de-
murrer.

By leave, the plaintiff replied double to pleas 12 and 16, on
Tvhich issues of fact were formed.

1st. To 12th plea ; that he did not falsely and fraudulently
represent to the defendant that the debts due from said firm
.did not exceed the sum of ^2,100.

2d. To 12th plea ; that the defendant had not been com-
pelled by law to pay $7,000, or any part thereof over the
sum of $2,091.50.

8rd. To 16th plea ; that the plaintiff did not covenant that
he, the said plaintiff, the title to the said tract of land would war-
rant, and forever defend, against the title, claim, and demand of

ILL. R. VOL. XV. 17

246 SPRINGFIELD.

Slack V. McLagan,

all and every person or persons whatsoever claiming through,
under, and by said plaintiff.

4th. To 16th plea ; that there was not a lien on said land and
said premises legally sold to satisfy said lien, and the said defen-
dant ousted and ejected from said premises.

On these issues the cause was tried by the Hon, Ira 0. Wil-
kinson, presiding, in Fulton county, a jury being waived, at the
May term of 1853.

On the trial, the plaintiff offered one note of $1,000, being the
same set out in the 19th count, which was admitted without objec-
tion, and the plaintiff rested his cause.

The defendant then offered a deed dated 3d of June, 1839,
executed by the plaintiff to the defendant, conveying in fee the
tract of land described in the 16th plea, in consideration of
$5,000, with a covenant corresponding exactly with that set out
in the 16th plea, and Avith this statement by way of describing
the land, " the same piece or parcel of land which the said Rob-
ert McLagan and James T. Slack purchased of Thornton Eas-
ley, and for which the said Thornton Easley executed his bond
on the third day of May, 1838, to make a good and sufficient
title in fee- simple, with general Avarranty when the purchase-
money specified in said title bond shall be paid, and when the
same and interest thereon shall be paid to the said Easley, or
his assignees, the said Thornton Easley is hereby authorized and
requested to execute a deed and convey said piece or parcel of
land to the said James T. Slack," which deed was admitted
by the Court.

The defendant then offered an exemplification of a record, show-
ing the proceedings in a cause by Thornton Easley against the
defendant, before the chancellor for the western division of
the State of Tennessee, sitting at Brownsville, Haywood
county, Tennessee, commencing on the 29th day of October,
1840. The bill was filed for the purpose of enforcing the com-
plainant's lien for the purchase-money of the tract of land
described in the pleadings in this cause, and sold to the plaintiff
and defendant, which it was alleged was unpaid. The convey-
ance by the plaintiff to the defendant was stated in the bill as
a reason for not making McLagan a party. Personal service
was had on Slack, and on the trial it was proved by the com-
plainant Easley, that he had sold said tract of land to the
plaintiff and defendant in this cause, for $625, payable on the
1st of January, 1840, with interest from the 1st of January,
1838 ; that Easley had executed a bond to McLagan and Slack
for title when the money was paid, and that Easley had
retained the legal title in himself as security ; that MpLagan

DECEMBER. TERM, 1853 247

Slack V. McLasran.

had conveyed to Slack, and that the purchase-money was wholly
due and unpaid. On this proof a decree was entered at the
November term, 18-il, of said court, that Slack pay the amount
due for said purchase-money, within ninety days, and in default
that the " clerk and master" sell said tract of land to satisfy the
claim of Easley.

The record further shows a sale of the land to Thornton
Easley, the complainant, and a confirmation of the sale by the
chancellor.

This record is certified by the clerk of the court and the chan-
cellor, under the law of Congress relative to judicial proceedings
in foreign States.

At the same time, in connection with the exemplification, the
defendant offered the deposition of Thornton Easley, taken by
virtue of a commission from the clerk of Fulton county, under
the statute of this State. Due notice was given and accepted by
the attorneys of the plaintiff, and on the trial no exceptions were
taken to the form of the deposition.

There was attached to the commission the original bond of
Thornton Easley to the plaintiff and defendant, which was
examined and identified by the witness.

The witness swears that he sold the tract of land described in
the bond exhibited at the time, and on the terms mentioned lU the
bond, to the plaintiff and defendant ; that the full names of the
firm of McLagan and Slack Avere Robert McLagan aad James T.
Slack ; he identifies the bond attached to the commission as his
original bond, and that it contains the contract under which the
purchase was made ; the witness states that McLagan and Slack
took possession of the property soon after the date of the
bond, built a steam mill, and remained in possession four or
five years ; that the witness was not paid the purchase-money,
and that he filed a bill for specific performance ; obtained a decree
of sale, and that the same was sold by the clerk and master to
the witness, the precise time not recollected ; that immediately
after the sale to the witness, he obtained possession by virtue of
such sale ; that he never made a deed to McLagan and Slack,
but merely the bond referred to ; that he had a lien on the
land for the purchase-money, and the land was sold to satisfy
that lien.

The bond is dated May 3, 1838, executed by Thornton
Easley, under his seal, to Roliert McLagan and James T. Slack,
in the penal sum of $1,250, conditioned to be void on the
making of a warranty deed, when the obligees should pay $625,
with interest from the 1st day of January, 1838, on the 1st

248 SPRINGFIELD.

Slack V. McLas-an.

day of January, 1840, conveying the premises described in tlie
pleadings.

The phiintiff objected to the introduction of the exemplifica-
tion of the record, the bond and the deposition, which was
sustained, the evidence exckided and exception taken by the
defendant.

The defendant rested his cause, when the court decided
that the plaintiff was entitled to recover on the note offered in
evidence.

The defendant entered motions " both for a new trial and in
arrest of judgment, which were overruled by the court and
exceptions taken.

The court then ordered the clerk to assess the damages,
and on his report thereof, judgment was entered for $1,000
debt, and $720.33 damages and costs, to which the defendant
excepted.

The defendant below now brings the cause to this court to
reverse this judgment, and makes the following assignments of
error, to-wit : —

1st. The circuit court erred in sustaining the plaintiff's demur-
rer to pleas, 9, 10, 11, 13, 14, and 15.

2d. The circuit court erred in excluding the evidence of the
defendant on the trial.

8d. The circuit court erred in referring the assessment of
damages to the clerk.

4th. The circuit court erred in overruling the motion for a new
trial.

5th. The circuit court erred in overruling the motion in arrest
of judgment ; and

6th. The circuit court erred in rendering judgment for the
plaintiff, and refusing to render judgment for the defendant.

W. C. GoUDY, for plaintiff in error, ex par^e.

ScATES, J. The declaration contained nine special counts on
written obligations, with the common counts.

To these, there were sixteen pleas. Several demurrers were
sustained to the 9th, 10th, 11th, 13th, 14th, and loth special
pleas ; and the first question we notice, arises upon these
demurrers.

The demurrers to the 11th and 13th pleas, should have been
overruled. The eleventh sets up a sufficient defense. Defend-
ants conveyed a tract of land, which was the consideration of
the obligations sued on, with covenant of warranty against all
persons. A breach of this covenant is the defense set up. It

DECEMBER TERM, 1853. 249

Slack V. McLagan.

shows that defendant ba el a title bond only, and subject to a ven-
dor's lien for the purchase-money ; and that the land was sold under
that lien, on the 23d of April, 1842, by virtue of an order of
decree of the proper court of Haywood county, Tennessee, where
the land lay, and on account of the default and neglect of
defendant. («)

The propriety of such a defense, where parties do not clearly
manifest an intention to rely upon their covenants alone, we
shall regard as decided in Gregory el a', v. Scott, 4 Scam. R,
392.

In Tyler v. Young ei al. 2 Scam. R. 44G, a similar plea was
sustained.

The thirteenth plea sets up the same consideration ; and as a
defense, the fraudulent and deceitful representations of defend-
ant, that he had a good title — knowing that he had no title
whatever — and that he has not now and never had any title.

The doctrine of caveat emptor, applicable to sales of real
estate, leaves purchasers to protect themselves by covenants of
warranty, except for the frauds of vendors, against which, courts
of law as Avell as equity will give relief, by refusing an enforce-
ment of the contract. Ownigs v. Thompson et al. 3 Scam. R.
502. Fraud would equally vitiate a contract, whether by parol
or in writing, or w"ith or without covenants of warranty.

The only deficiency noticed by the court, in Waun v. McGroon,
2 Scam. R. 77, to a similar plea, was a want of a particular
description of the land. This plea sets it forth by metes and
bounds. These two pleas set up bars to this action, and demur-
rers should have been overruled. (6)

The other pleas demui-red to, are insufficient, for want of
traverses of the facts represented to exist by the defendants, so
far as fraud is attempted to be set up. The ninth plea should
have alleged that the debts did exceed ^2,100 ; that defendant
well knew it, and that plaintiff was ignorant of the amount.
There is no traverse or denial of the existence of the facts, which
the plea alleges were fraudulently represented as existing, unless
we hold it to be a sufficient allegation of fraud, to allege, in gen-
eral terms, that certain fraudulent representations were made.
This is not sustainable upon the principles of pleading or of jus-
tice. The facts constituting the fraud, should be set forth in the
pleading.

The 10th plea offers an excuse for plaintiff's ignorance of the
state of his accounts, but in all other respects is liable to the
same objections as the ninth.

{a) Furness v. Williams, 11 111. R. 288 ; Scliucliman i: Knoebel, 27 111.
R. 175 ; Willett v. Bui-o-ess, 34 III. R. 495.
{h) Stookey v. Hughes, 18 111. R. 56.

250 SPRINGFIELD.

Slack V. McLaorau.

The I4th and 15tli pleas allege the consideration of the obliga-
tions sued on, to be title to a certain tract of land, conveyed with
■warranty ; and set up a failure Ox.' ^he consideration to consist
on a failure of title, by reason of a deciot in chancery, obtained
by the vendor to defendant and another, for the sale of said
land for the purchase- money due therefor, and under which it was
sold.

The 15th plea sets up as a failure of consideration, that the
land was legally sold to satisfy the purchase-money due for said
land, from defendant and another.

The allegations will be taken most strongly against the plead-
er, who is supposed to set forth all the facts, or enough to sus-
tain his action or defense.

These pleas are defective for want of material allegations.
There is no allegation of a vendor's lien, incumbering the title in
the hands of the defendant or plaintift".

A decree or a judgment for the purchase-money does not nec-
essarily imply a vendor's lien ; nor Avould a sale without such
lien necessarily transfer a good title or incumber the title pre-
viously conveyed, although it might be under a decree or judgment
for the purchase-money, and might also be legally made. It
might be on notes secured by mortgage of other property, or by
sureties ; either of which, if not otherwise agreed, might dis-
charge the land of a vendor's lien for the purchase-money. See
3 Sugd. on Vend. 182, 183, ch 18.

Although such a sale might be good for such title as defendant
had at the time, yet the pleas show that he had conveyed long
before to the plaintiff, and are silent as to a conveyance to
defendant by his vendor. We will presume, as against the plead-
er, that such conveyance had been made. There is not even a
general averment of a lien, nor that either of these sales incum
bered the title to plaintiff's prejudice.

The plaintiff, on the trial, offered in evidence the transcript of
a record of the chancery court of Haywood county, Tennessee,
between Thornton Easley, complainant, and James T. Slack,
defendant ; and which was certified under the private seal of the
clerk and master of said court, there being no public seal provi-
ded : his official character, and the form of his certificate, are
duly certified to by the presiding chancellor of said court.

This record was excluded, and we think erroneously. The
authentication appears to be conformable to the act of Congress
of 26th May, 1790. (See act in App. R. S. 45, p. 624. )

The certificate in Craig v. Brown, 1 Peters, C. C. R. 353,
was held insufficient, because the judg-e did not certify that the
clerk's certificate was in due form. The certificate in this case is

DECEMBER TERM, 1853. 251

Whitney et al. v. Mayo et al.

full and complete under the act ; and so far as this question is
concerned the record was admissible in evidence.

We also think it clearly admissible in evidence on the issues
under the 11th and 16th pleas — the latter of which paaticularly
connects the defendant as a privy in the transaction passed upon
in the decree.

It is unnecessary here to determine how far he is bound or con-
cluded by that decree, on account of his privity in the contract.
It is enough to entitle it to admission, that it affords p7'u)iajacie
evidence of facts material to these issues.

The question as to what effect the record should have in evi-
dence, does not arise in this record, because it was wholly exclu-
ded, and can only be raised after it is introduced.

The court should have admitted the bond and deposition of
Thornton Easley, under the issues. No valid objection to either
has been made before the court, and each is admissible, as tend-
ing to prove the issue for plaintiff. The bond was admissible,
as tending to prove the character of defendant's title, and that a
vendor's lien might or did exist under it, as settled by the law of
Tennessee. Eskridge v. McClure el al. 2 Yerg. 84. So, also,
of the deposition ; and that there had been an ouster by para-
mount title.

All evidence tending to prove the material facts, or either of
them, is admissible, although it may not alone establish the whole
case. Rogers v. Brent, 5 Gilm. R. 587.

The defendant having offered a promissory note only in evi-
dence, the court properly referred the assessment of the damages
to the clerk.

Judgment is reversed, and cause remanded for a new trial.

Jads^menl reversed.

James W. Wihtney e^<2/., plaintiffs in error, v. Benjamin Mayo
etal., defendants in error.

' ERROR TO ADAMS.

Tlie general rules of equity require that all persons material]}' interested
in the subject or object of a suit, however numerous, must be made
parties.

252 SPRINGFIELD.

Whitney et al. v. Mayo et al.

In cases of voluntary associations, equity will not sustain a bill filed by
a portion of the members, unless the others are made defendants.

The same principle prevails where the officers or a committee of a
church sue.

If parties in interest refuse to join in bringing suit, they may be made
defendants, notwithstanding their true interest may be with the com-
plainants.

Where it is wholly impracticable to make all who are interested parties^
the exception has its force ; justice will not be denied, and the suit
may proceed without all the parties, and against such as may be joined.

The bill recites that J. W. Whitney, in 1830, was seized in fee
of lot 1, on block 8, Wheelock's addition to Quincy.

"That on the 18th of April, 1839, for the consideration of
$100 contributed by the Roman Catholic church and congrega-
tion of Quincy, and paid to him, conveyed the north 100 feet
wide of said lot to the right reverend Joseph Rosati, Roman
Catholic bishop of the diocese of St. Louis, and his successors in
said diocese, forever, for the use and accommodation of a
Roman Catholic church or congregation in said Quincy, as a
piece of ground on which to erect a church, in which is to be
publicly taught and expounded the truths and doctrines of the
Christian religion, according to the rites, forms, and ceremonies
of the Roman Catholic church ; but it is understood and con-
sented to by me, that if at any time hereafter the Roman Cath-
olics of Quincy should desire to make other arrangements for
their accommodation, they shall be at liberty to use the afore-
said piece of ground as a site for a literary institution, or any
institution of charitable purposes, as to them may seem meet
and proper or in any way to advance the interests of religion,
literature and charity.

"And afterwards, on the 4th of April, 1811, made a further
conveyance of the balance of said lot, in which the whole lot is
described, to said 'Joseph Rosati, Roman Catholic bishop of the
diocese of St. Louis,' and his successors in the diocese of St.
Louis forever, to have and to hold said town lot unto said party
of the second part, and his successor and successors, Roman
Catholic bishops in the diocese of St. Louis, forever, in trust to
and for the use of a Roman Catholic church and cono-reo'ation
in the city of Quincy, aforesaid, forever, and the accommodation
of the officiating priest or pastor of said congregation or church,
and agreeably to the forms, rules, and ceremonies of the Roman
Catholic church forever.

"That said.Roman Catholic church and congregation of Quincy
erected thereon a building for worship, and one for the officiating
priest.

That at the time of the execution of said deeds, there was,
and still is, a Roman Catholic church and congregation at

DECEMBER TERM, 1853.

Whitney et al. v. Mayo et al.

Quincy aforesaid, unincorporated, for whose use said convey-
ances were made ; and at the time said deeds were made, the
said church and congregation which erected said buildings, were
the only Roman Catholic church and congregation of Quincy
aforesaid.

That Derwin, one of the complainants, then was and still is a
member of said church and said diocese, was and is the officiat-
ing priest thereof.

That said buildings were erected by donations made by the
members of said church and congregation for the erection
thereof.

That said church and congregation consists of several hundred
members, too numerous to be made parties.

That said Rosati was then bishop of the diocese of St. Louis,
and said Quincy, and said church, within said diocese of St.
Louis.

That on the 14th of September, 1842, one Peter R. Kenrick,
who pretended to act as attorney in fact of said Rosati, as such
bishop, but having no warrant of attorney, made deed of the
west 30 feet wide of said lot, to one Mayo, in fee absolute, on
which was situated said parsonage or house for the priest, said
Mayo went into possession and conveyed to Marrs, who died,
and whose heirs claim the same, and refuse the said priest posses-
sion thereof.

That after that time said Rosati died, and said Peter R. Ken-
rick is his successor as such bishop of the diocese of St. Louis.

That said Kenrick refuses to execute said trust.

That said church and priest are entitled to the possession of
said premises, and to have said trust in said deeds specified, exe-
cuted.

The cause was heard before 0. C. Skinner, Judge, at Novem-
ber term, 1851, of the Adams Circuit Court.

Warren and Edmunds, for plaintiffs in error.
Browning- and Bushnell, for defendants in error.

ScATES, J. Several important questions raised and discussed,
need not be decided, upon the record as now presented, under
the view taken by the court. They are of opinion that all the
proper parties are not before them. The following facts set
forth in the bill, to which a demurrer was sustained, will clearly
show the propriety of dismissing the bill. In 1839 and 1841, a
Roman Catholic congregation of Christians, composed of J. W.
Whitney and some three hundred others, communicants, as mem-

254 SPRINGFIELD.

"Whitney et al. v. Mayo et al.

bers, and F. Derwin, as officiating priest or pastor of the con-
gregation associating together, unincorporated, for the purposes
of public -worship, had become organized into a church. The
merQbers!'of the church contributed funds, bought a lot of said
Whitney for that purpose, and erected thereon a church building
for public worship, and a parsonage for the residence and use of
their pastor. According to customs and usages of the Roman
Catholic church, in relation to the title of the glebe and tempo-
ralities, a conveyance in fee of the lot was executed to the right
reverend Joseph Rosati, bishop of the St. Louis diocese, in which
the lot in Quincy was situated, and to which the congregation
belonged, and in which conveyance it was declared to be in trust
for a Roman Catholic church in Qnincy.

Afterwards the bishop conveyed in fee thirty feet of the lot,
including the parsonage, to Ann Mayo, and Ann Mayo and her
husband conveyed to Elizabeth P. Marrs.

The bill complains of this as a breach of the trust, and seeks
the appointment of a trustee to execute the trust, and that the
conveyances be set aside, and the bishop decreed to convey to
such trustee as the court may appoint.

Each communicant is alike and equally interested as these
complainants. All derive a common interest from the voluntary
association ; and as between the association and strangers to it,
there is no separate, private, individual interest. Possibly as
amongst themselves, such equities might arise. But no such
equity is presented by this bill.

The general rules in equity require all persons materially
interested in the subject or object of the suit, however numer-
ous, to be made parties, complainants or defendants, that all
may be provided for, and protected by the decree. Story, Eq.
PI. § 72 et seq. ; Hill on Trustees, 519 ; 2 John. C. R. 239 ;
Greenup v. Porter et al.^ 3 Scam. R. 65; Scott v. Moore
et al., ib. 315; Willis et al. v. Henderson, 4 ib. 20 ; Spear v.
Campbell et al. ib. 426 ; Montgomery v. Brown, 2 Gilm. R. 581,
Hoare v. Harris, 5 ib. 24 : Webster v. French, 5 ib. 254. To
these rules there are exceptions, but no suggestion or averment
in this bill presents a case for dispensing with the other com-
municant members of this congregation. There is no averment
that they are out of the jurisdiction, nor are we prepared to say
that an exception to the rule is predicable here upon that
ground, under our statute providing for service on non-residents
by publication, or by delivery of copies and notice. Rev. Stat.
1845, p. 94, §§ 8-12. And the remark may equally apply to
"unknown persons" who may also be sued and served under
the statute, and whose interests are equally bound by a decree.

DECEMBER TERM, 1853. 255

Whitney et al. v. Mayo et al.

lb. p. 98, §§ 41, -12. The only averments in relation to the other
communicant members of this congregation and church are,
" that the persons who contributed, and by whose charity the
same, was done, are too numerous to be made parties to this
bill, amounting in number to several hundred, and many of
whom are unknown to your orators."

The foregoing remarks would apply to making parties de-
fendants. Non-residents may sue here, and no exception would
therefore arise. The only grounds presented, are, however, the
great number of communicant members of the congregation,
many of whom are unknown.

Those who are unknown would of course fall within the ex-
ception as to making them complainants. And so numerous-
ness falls within the same exception. Story, Eq. PL § 94 et
seq. ; Cockburn v. Thompson, 16 Ves. R. 329 ; Wood v. Dum-
mer, 3 Mason, R. 317.

But in such cases it is practicable, and the court 'generally
requires the bill to be filed, not only in behalf of the complain-
ant, but also in behalf of all other persons interested, who are
not directly made parties (although they are in a sense thus
made so), so that they may come in under the, decree, and
take the benefit of it, or show it to be erroneous, or entitle them-
selves to a re-hearing. Story, Eq. PI. § 96 et seq. ; Martin v.
Dryden, 1 Gilm. R. 209 ; Montgomery -y. Brown, 2 26. 581, And
in cases of voluntary associations like this, equity will not sus-
tain a bill by part, unless the others be made defendants, or
they are made parties by suing, also, for and on their behalf.
Story, Eq. PI § 107 et seq. for illustrations ; Hill on Trustees,
519, 546 ; 2 Pet. R. 584. The same principle is recognized
where the officers, or a committee of a church sue, as in
2 Pet. R. 584 ; 8 B. Monroe, R. 70, 212. And so it was recog-
nized in the County of Pike v. The People, on relation of
Metz, 11 111. R. 202. If parties in interest refuse to join in
bringing suit, they may be made defendants, although their
true interest may be with the complainant. Smith v. Sackett,
5 Gilm. R. 534. Where it is wholly impracticable to make them
parties, as where the State should be the party, but by law she
may not be sued, in such case the exception has its full force.
Parties in interest shall not be denied justice, but may proceed
without and against those who may be joined.

The case before us falls within the exception to the general
rule on account of the numbers, and part being unknown ; which
may excuse their being made parties by name. But the bill has
not been framed within the exception. It should have been
filed for and on behalf of all the other communicant members.

256 SPRINGFIELD.

Louk V. Woods.

or some grounds shown wliy they could not be made com-
plainants in this way. And if prevented by their refusal they
should have been made defendants, which could have been
done even as to those whose names were " unknown," under
our statute.

So apparent is the effect of any decree that could be made
on the merits, upon the interests of all the other numerous mem-
bers of this congregation, that we must sustain this objection,
even if now taken for the first time. Or taking a different view
of it, in the light that not being before the court, their rights and
interests could not be affected by a decree, then no valid and
effectual decree can be made which would not leave the
same question open to be litigated in a hundred or more similar
suits by different members of the same congregation.

For want of the necessary parties, we feel that it would be
improper to decide the many important questions presented in
the bill. Decree affirmed.

Decree affirmed.

Jefferson Louk, appellant, v. Ira Woods, appellee.
APPEAL FROM McDONOUGH.

A party lias a right, in an action of trespass quftre clnvsvmfrefjii, to intro-
duce such evidence of title as he possesses, so as to oljtain a decision
upon the proper construction of a deed under which he claims right bj*
license from the grantees, to enter upon the land and do the acts com-
plained of.

A deed which reserves a strip of land seven and forty-seven hun-
dredths rods wide, east and west, and extending in length across the
quarter section north and south, will not be construed, against the
manifest intention of the party expressed in the deed, as reserving only
seven and forty-seven hundredths rods of land.

Where a number of persons are intrusted with powers in matters of
public concern, and all of them are regularly assembled and consulting,
the majority may act and determine, if their authority is not otherwise
limited and restricted.

In such case where a reijort is only signed by two of three viewers of a
road, it will be presumed that the third was present and consulting,
until the contrary is shown.

An inquiry into the acts and proceedings of a county commissioners
court by their minutes, files and other proofs, so far as to ascertain
whether a road has been legally laid and established under the laws,
is proper.

So a petition in which a certain road is described over a certain loeun
in (^(/o, may be admitted in proof as an admission of a fact therein

DECEMBER TERM, 1853. 257

Louk V. Woods.

stated. And parol proof of the actual location of a road, is also
competent evidence to establish the existence of a highway, if trav-
eled, recognized, and worked upon as such, in order to raise a pre-
sumption of dedication.

This is an action of trespass quare clausumfregit, originally
commenced in the county of Fulton, and taken by change ot'
venue to McDonough.

The declaration contains three counts, —

1st. For that defendant, on the 2"2d of March, 1850, at the
county of Fulton, broke and entered the plaintiff's close, des-
cribed as " a strip of land T/q'o rods wide ofl" the east side of the
south half of the northwest quarter of sec. 19, 8 N. 1 E.," and
thrcAv down his fence.

2d count like the first in all respects, except the land is
described as being a strip T^^'q rods wide off the east end of the
northwest quarter of sec. 19.

od count same as first count, except the land is described as
being the south half of the northwest quarter of sec. 19, 8 N.
IE.

The defendant filed five pleas to the declaration as follows : —

1st plea to 1st count. Idherum tenementum^ alleging the
freehold to be in Orlando H. Woods and others, heirs at law of
Jonas Woods, deceased, and that defendant entered by their
leave.

2d plea to 2d count the same, alleging the freehold to be in
John Woods, and the said Orlando H. Woods, heirs, &c.

3d plea to 3d count the same, alleging the freehold to be in
Orlando H. Woods, and the other heirs at law of Jonas Woods,
deceased, and entry by their leave.

4th plea to the whole declaration. That there was a public
road laid out over the land where the trespass was committed, that
the road was obstructed and defendant removed the obstruction,
as he had a right to do.

5th plea to the whole declaration. That defendant was super-
visor of roads for that district where the closes were situated ;
that there was a public road laid out over the closes where, &c. ;
that it was his duty to keep the road open and in repair ; and as
such supervisor he did, in discharge of his duty, remove the
plaintiff's fence which was obstructing the road, and is the tres-
pass complained of.

Replications to 1st plea, that the close, &c.,is not the freehold
of the said Orlando PI. Woods and others.

To 2d and 3d pleas, the same.

To 4th and 5th pleas, that there is no such road.

Issues to the country were joined on all these pleas.

258 SPRINGFIELD.

Louk V. Woods.

The defendant, in order to show title in Orlando H. Woods and
others, introduced a deed from Ira Woods to Jonas Woods in due
form, dated 17th of January, 1839, conveying to said Jonas,
" the south half of the northwest quarter of section 19, 8 N. 1
E., excepting Tg rods off of the east end of section 19." The
plaintiff objected to the introduction of this deed, but the court
admitted it and plaintiff excepted.

The plaintiff then entered a nolle proaequi to the 1st and 3d
counts in his declaration.

The defendant next offered in evidence a deed from Ira Woods
to John Woods, one of the persons named in defendant's 2d
plea, dated 17th of January, 1839, and duly executed, conveying
to said John "the north half of the northwest quarter of section
19, 8 N. 1 E. excepting 7 rods and joq of a rod off of the east
end."

To the reading of this deed in evidence, the plaintiff objected ;
the objection was sustained, and defendant excepted.

Defendant next proved that Jonas Woods died 1st of October,
1818, and that the persons named in plaintiff's first plea were
his legal heirs.

Defendant next offered a transcript of a record of the county
court of Fulton county, duly certified as follows : —

1st. Petition for a road, dated August 10,1837, signed by Ira
Woods and 38 others, to the county commissioners' court of Ful-
ton county, asking the court to appoint viewers to lay out a road
between St. Augustine, in Fulton county, and Macomb in
McDonough county, " beginning on section 5, 8 N. 1 E., where
the Knoxville road strikes the Fulton county line ; from thence
to St. Augustine, and on the best and highest ground to the
McDonough county line, on section 31, 8 N. 1 E.," which peti-
tion was presented at June term, 1838, of said court. At that
term, James Ogden, Oliver Spencer, and John Johnson, were
appointed viewers to view and locate the road.

At the September term, 1838, of said court, the viewers made
their report, to-wit, John Johnson and James Ogden report, that
they were duly sworn, viewed the ground, thought the road
necessary, and located it as follows, namely, beginning on sec-
tion 5, 8 N. 1 E. at the point where the Knoxville road strikes
the Fulton county line, thence south to St. Augustine, entering
the town on Prairie street, thence Avith Prairie street through
said town, thence southerly leaving certain hollows on the left,
till the road strikes Cedar creek, thence southwest up the north
side of said creek to a place of crossing, thence southwesterly
on a ridge till said road strikes the east line of section 18, a few
rods south of the northeast corner of said section, thence south-

DECEMBER TERM, 1853. 259

Louk V. Woods.

•westerly to tlie middle of said section 18, a few rods south of its
centre, thence south on the middle line of sections 18, 19,
30, and half of 31, thence southwest to the southwest corner of
section 31, at the point where McDonough county joins Fulton
county.

And in connection with such record, defendant offered to prove
by parol, that said road was laid out over the same land, for tres-
passing upon which ihis suit is brought.

This evidence was all objected to and excluded, and defendant
excepted.

The defendant next offered in evidence, a petition signed by
Ira Woods and 48 others, asking the commissioners' court of
Eulton county to vacate a part of a road leading from Woodstock
to St. Augustine, namely, that part running across the north
half of section 19, in township 8 N. IE., because it cuts a strip
of land 7i rods wide, for half a mile in length, and divides
the house and destroys a part of the orchard and garden, and
relay it on the line between .the farms, 7ioo rods further west,
where the road is open, worked, and traveled since the county
was established. This petition is dated July 10, 1849 ; the sig-
nature of ' 'Ira Woods" was proved to be his handwriting. This
testimony was rejected, and defendant excepted.

Defendant next offered a witness to prove by parol, that a road
was laid out in the year 1838, over the identical ground for tres-
passing on which this action was brought.

This evidence was rejected by the court, and defendant
excepted.

It was then admitted that the defendant was a road supervisor
for the district where the lands lie and the trespass committed,
and was acting in that capacity when he committed the trespass,
and attempting to open a supposed public road previously laid
out.

It was proved that the title to the northwest quarter of section
19, 8N, 1 E. was in Ira Woods, before the deeds above named
were made.

That when the trespasses complained of were committed, and
for several years before, he lived in his house, situated on the
northeast quarter of section 19, near the centre of the west line
of said quarter ; that at that time there was a public traveled
road running north and south through the said northwest quar-
ter of secton 19, along the west side of plaintiff's fence, which
stood about 7| rods west of the east line of northwest quarter,
and which fence made the west fence of plaintiff's inclosure,
which inclosure embraced sard strip of land To rods wide east
side, northwest of section 19, and the whole of northeast quarter

260 SPRINGFIELD.

Louk V. Woods.

of said section, all of which premises were inclosed by an out-
side fence, the west fence thereof being along the east side of
said traveled way. The plaintiff had a door yard in front of
his house extending to the road, which was inclosed on north
and south sides by fences extending to his said west fence, and
crossing the 71 rod tract in dispute, and that plaintiff's north
door yard fence crossed the 11 rod strip of land at a point
within the north half of northwest quarter of section 19, and
that about half way between said fence and the north line of said
section 19, plaintiff, had another fence running from the road
east across the 11 rod tract, to the east line of said quarter section;
and that along said traveled way, and between the said division
fence aud the said north garden fence, the plaintiff had an orchard
of fruit trees.

It was then proved, that when the trespasses were committed,
there was a public traveled way running north and south on the
middle line of section 18 in 8 N. 1 E. ; that when it reached the
north line of said section 19, it turned off diagonally to the west
along plaintiff's west fence till it reached the distance of about 7"',
rods west of the east line of the northwest quarter of section 19,
when it turned south along plaintiff's west fence, and so contin-
ued till it reached near the south line of the northwest quarter of
section 19, when it turned diagonally east along the plaintifi's
said fence till it reached the centre of the north line of the south
half of said section, from which point it continued south through
the centre of said tract.

Defendant then proved that, as supervisor, he opened the road
by throwing plaintiff's fences down, about the middle of the 7
rod strip.

It was then proved, that from the year 1837 there had
always been a public traveled road running north and south
through sections 18 and 19, on the centre line of said sections,
and that in 1837, 1838, it passed on the centre of section 19
(being the line on which the alleged trespasses were committed)
for 80 rods from the north line of said section. That plaintiff
built a fence on west side of his cloor yard in 1837, by side of the
road, and in 1839 he extended that fence north to his north orchard
fence.

Defendant introduced several witnesses, whose evidence
tended to prove, that when the fence west of the orchard was
built, in 1837, it was built two or three rods further west than
the old door yard fence, so as to throw the road west, and that
the plaintiff' then moved his door yard fence further west two or
three rods so as to throw the road that distance further west,
where it has since continued. Also tending to prove that plain-

DECEMBER TERM, 1853. 261

Louk r. Woods.

tiff's fence along the road between the northwest corner of the
orchard and the north line of: section 19, was moved out west
by plaintiff two or three rods in 1841 or 1842, so as to throw
the road along that part of his fence two or three rods further
west.

Plaintiff then introduced evidence tending to prove that said
road was substantially on the same ground as in 1837 and 1838,
and that plaintiff had not moved his fence west in 1839 and 1841
or 1842.

Defendant next proved by two witnesses, that plaintiff told them
before the commencement of this suit, that there was a laid
out road over the place where the alleged trespasses were com-
mitted.

The jm-y found a verdict for plaintiff, whereupon the defendant
moved for a new trial, for the following reasons : —

1. Because the court erred in excluding from the jury legal
evidence offered by defendant.

2. That the court erred in giving to the jury the instructions
asked for by plaintiff.

3. Because the verdict was against law and evidence.

Which motion was overruled, and defendant excepted ; where-
upon judgment was rendered for plaintiff, and defendant
appealed.

This cause was heard before Minshall, Judge, and a jury at
April term, 1851, of the McDonough Circuit Court.

H. M, Wead, for appellant.
0. H. Browning, for appellee.

ScATES, J. Trespass quaredausuinfrcgit. Plea (^i liheruvi
tenenientum in John Woods, Orlando H. Woods, and others,
heirs of Jonas Woods, and by leave, &c. Also, that the locus in
quo was a highway, and plaintiff supervisor, and as such, he re-
moved obstruction, which, &c. Upon these pleas issues were
joined.

The first question raised is upon the exclusion of a deed from
Ira Woods to John Woods, for the north half of the northwest
quarter of section nineteen, in township eight north, range one
east, "excepting seven rods, and /oo of ^ I'od, off of the east
end," dated 17th January, 1839. An exception, in the same
language, is contained in a deed from Ira Woods to Jonas
Woods for the south half of the same quarter section, dated same
day and year, and which was admitted in evidence.

This deed should have been admitted in evidence, as show-
ing title to part of the quarter section, and tending to show
ILL. R. VOL. XV. 18

262 SPRINGFIELD.

Louk V. "Woods.

what title the party might set up and claim bj construction of
the deed, to the seven lo^ rods in controversy. He had a right to
introduce such evidence of title as he possessed, and so as to
raise a question and obtain a decision upon the proper construc-
tion of a deed, under which he claimed rights by license from the
grantees to enter upon the excepted strip of land, and do the acts
complained of. Every exception in a deed may not be good ;
and those who have interests to challenge them should have the
opportunity and privilege of being heard. See 2 Hilliard on
Real property, p. 352, §§ 134-147.

The objection to the exception for uncertainty is not well taken.
The true construction of the deed reserves a strip of land seven
/oo rods wide, east and west, and extending in length across the
quarter section north and south, and will amount to seven ^Jq acres
in quantity. To construe it as reserving only seven ^oo rods of
land in quantity, would be, in our opinion, against the manifest
intention of the party expressed in the deed. 13 Illinois R. 715;
10 Maine R. 396 ; 10 Mass. R. 186.

The record and proceedings of the county court in relation to
the location and establishing a highway over the premises, were
improperly rejected. The proceedings took place under the act
of 1835. The 11th section provides that three viewers shall be
appointed, who shall view the ground, and upon oath shall de-
termine whether they believe the road applied for to be neces-
sary ; and if so, they are to locate and report. Here a judg-
ment and discretion are to be exercised. The general rule laid
down on this subject is, that where a number of persons are in-
trusted with powers in matters of public concern, and not of
mere private confidence, and all of them are regularly assembled
and consulting, the majority may act and determine, if their
authority is not otherwise limited and restricted. Grindley v.
Barker, 1 Bos. & Pull. R. 236 ; Doughty v. Hope, 3 Denio, R.
598 ; S. C. 353.

But although the report in this case is signed by only two of
the viewers, and does not show, nor is there any evidence, that
the third viewer was present and consulting ; yet according to
the presumption held in Doughty against Hope, we shall pre-
sume that he was present and consulting, until the contrary is
shown, (a)

This presumption is consistent with the principles of evidence
applied in establishing the existence of highways and their par-
ticular location, by parol evidence, in Lyman et al. v. The Peo-
ple, 1 Oilman, R, 8,9; Nealy v. Brown ei al. ib. 12 to 14.

(^0 Dennis v. Maj-nard, pod 478 ; Trustees of Schools r. Allen, 21 111-
K 124; Scotield c. 'Watkius, 22 111. Ii. (3(3; Commissionrs etc. v. Baum-
^•arten, 41 111. 11. 249.

DECEMBER TERM, 1853. 2G3

Crouch V. Hall.

The objection urged against an inquiry into tlie acts and pro-
ceedings of the county commissioners' court, in a collateral pro-
ceeding has no foundation, under that well settled principle, in
this case. In this case it extends only so far, as to ascertain by
their minutes, files, and other proofs, whether the road had been
legally laid and established under the law ; and does not pro-
pose to revise the propriety of its establishment. These courts
have general supervision over county roads ; and yet are, to a
certain extent, of limited jurisdiction. Although required to
keep written entries of their acts and determinations, they are
not required to preserve in writing all the evidence on which
they exercise their jurisdiction. In this connection may be
noticed the next question raised in relation to the rejection of a
petition by defendant and others, in which the location of the
road over the locus in quo is described and set forth ; and also,
of parol proof of the actual location on the same place. Both
should have been admitted. The first we think competent evi-
dence of defendant's admission ; and the last competent evi-
dence to establish the existence of a highway, if traveled, recog-
nized, and worked upon as such, to raise a presumption of dedi-
cation. These proofs should all have been sent to the jury, as
■competent, and tending to prove the issues.

Judgment reversed, and cause remanded,

Juds)nent reversed.

David Crouch, appellant, v. John Hall, appellee.

APPEAL FROM SANGAMON,

The liability of an assignor of a note assigned in the State, will be gov-
erned by our laws.

To excuse a want of diligence, by suit against the maker of a note, the
declaration should show why a suit would have been unavailable.

On a common law question, the courts of one State will assume that the
common law is in force in a sister State.

At common law, want of consideration is a good defense to a note in the
hands of the payee, or an indorsee, after maturity.

This cause was heard before Davis, Judge, at November term,
1853, of the Sangamon Circuit Court. The opinion furnishes
a statement of the case.

264 SPRINGFIELD.

Croncli V. Hall.

S. T. Logan, for appellant.
J. C. CoNivLiNG, for appellee.

Treat, C. J. This was an action of debt, brought by Hall
against Crouch. The first count of the declaration alleged in
substance, that H. and A. Crouch made a promissory note to
the defendant, bearing date the 16th of September, 1837, and
payable on the 20th of October, 1838 ; that the note was as-
signed by the defendant to McCoy, on the 22d of September,
1841, and by McCoy to the plaintiff, on the 10th of May, 1851 ;
that the note was executed in the State of Kentucky, where the
makers then, and ever since, have resided, and that the assign^
ments were made in this State ; whereby the defendant became
liable to pay the plaintiff the amount of the note. The second
count was like the first, with the additional averment, that fi'om
the maturity of the note to the commencement of this action,
the institution of a suit against the makers would have been
unavailing. The third count was similar to the first, with an
additional averment, that the note was made without any con-
sideration whatever. The court sustained a demurrer to the first
and second counts, and overruled a demurrer to the third count.
The defendant abided by his demurrer, and the plaintiff had judg-
ment for the amount due on the note.

The note having been assigned in this State, the liability of
the assignor must be governed by our laws. By the statute,
there are three contingencies in which the assignor may be held
liable. 1. Where the assignee, by the exercise of due diligence,
prosecutes the maker to insolvency. 2. Where the institution
of a suit against the maker would be unavailing. 3. Where
the maker has absconded or left the State, when the note falls
due. By the contract of assignment, the assignor undertakes
to pay the note on the happening of either of these contingen-
cies. It is not pretended in this case, that the assignee has
made use of any diligence by suit to obtain payment from the
makers. The second count of the declaration alleges, that the
bringing of a suit against the makers would have been unavail-
ing. This averment is too general. It ought to show why a
suit would have been unavailable ; as that the makers were in-
solvent, or there was no consideration for the note. It should
state the special cause, so that the assignor might come pre-
pared to meet it. Leaving this averment out of the case, the
two first counts are precisely alike. They seek to excuse the
want of diligence, because the makers were non-residents of this
State. According to the rulini? of this court in Schuttler v.

DECEMBER TERM, 1853. 265

Crouch V. Hall.

Piatt, 12 111. 417, if tlie note liad been assigned before maturity,
the assignee might have recourse against the assignor, without
making any attempt in a foreign jurisdiction to coerce payment
from the makers. But this is not such a case. The note was
over due when the assignment was made, and the makers have
never been within this State. The case is not within that
clause of the statute which holds the assignor liable if the
maker is not within the State when the note matures. The as-
signee received the note long after it was due, and when the
contingency contemplated by that portion of the statute could
never arise. The parties must therefore, have contracted solely
in view of the other provisions of the statute. The assignor
assumed to pay the note, if it could not be collected by the use
of due diligence, or if the bringing of the suit would prove
unavailing. This, we doubt not, was the real understanding of
the parties. It can hardly be supposed that the payee would
assign the note under the circumstances, if the assignee could
hold him liable, without first endeavoring to enforce payment
from the makers, or showing that the effort would be ineffec-
tual. In our opinion, the plaintiff must show that he has prose-
cuted the makers to insolvency, or that the institution of legal
proceedings against them would have proved unavailable. It
follows that the first and second counts were properly held bad
on demurrer.

It is insisted that the third count is defective, because it fails
to allege that a want of consideration is a good defense to the
note by the laws of Kentucky. The note having been executed
in that State, the liability of the makers is to be determined by
its laws. If they can avail themselves of such a defense, the
plaintiff has a good excuse for not suing upon the note. As a
general principle, courts will not take judicial notice of the laws
of another country, but they must be alleged and proved as
facts. Especially is this the case as to the statutes and local
usages of such country. But the rule is not without qualification.
In the absence of all proof to the contrary, the common law
is presumed to prevail in the States of the Union. On a com-
mon law question, the courts of one State will assume that the
-common law is in force in a sister State. Maxwell v. Max-
well, 1 Mass. 104 ; Legg v. Legg, 8 ib. 99 ; Thurston v. Perci-
val,l Pick. 415 ; Sherrill v. Hopkins, 1 Cowen, 103 ; Holmes t;.
Broughton, 10 Wend. 75 ; Abel v. Douglass, 4 Denio, 305 ; Stout
V. Wood, 1 Blackf . 71 ; Titus ?'. Scantlings, 4 ib. 89 ; Shepherd
V. Neighbors, 6 Ala. 631 ; High's Appeal, 2 Doug. Mich. 515 ;
Bernard v. Bany, 1 G. Greene, 383. By the common law, a
want of consideration is a good defense to a note in the hands

266 SPRINGFIELD.

Morris v. Trustees of Schools.

of the payee, or an indorsee after maturity. The presumption
here being that the common law prevails in Kentucky, the
makers have a perfect defense to the note, and the bringing of
a suit upon it would be useless and unnecessary. This count
states a good cause of action against the defendant.
The judgment must be affirmed.

Judgment affirmed.

Benjamin F. Morris, plaintiff in error, v. The Trustees of

Schools, &c., defendants in error.

ERROR TO HANCOCK.

Objections that an attaclament bond is defective, cannot be raised for

the first time in this court. They should first be made in the court

below.
Two writs of attachment may be issued at the same time to difierent

counties.
The sheriflf executing an attachment should make a return as to the

defendant, or the plaintift" cannot properly proceed to judgment.
Sheriffs may make amendments to their returns, without notice to the

opposite party, even after their term of office has expired.
It is not necessary in advertising notice to defendants in attachment, to

state what counties the writs were issued to, or give a descri^jtion of

the property attached.
It is not necessary in an action of this kind, to allege in the declaration

that the township had been regularly incorporated,if the suit is brought

in the coi-porate name of the tOAvnship.

This cause was heard before Woodson, Judge, and the facts
will be found in the opinion of the court.

Browning and Bushnell, for plaintiff in error.

Wheat and Grover, for defendants in error.

Treat, C. J. This was a proceeding by attachment, sued
out in the name of the "Trustees of Schools of township four
north, of range six west, in Hancock county, Illinois," against
B. F. Morris. It was comL^enced in the Hancock Circuit Court,
on the 30th of April, 1851. The affidavit stated that the de-
fendant was justly indebted to the plaintiffs, "in the sum of
about seven hundred and twenty-one dollars and twenty-seven
cents ; that said indebtedness is by a promissory note, signed

DECEMBER TERM, 1853. 267

Morris v. Trustees of Schools.

and sealed by the said Benjamiu F. Morris, bearing date the
fifth day of June, 1840, and payable two years after date, for
the sum of seven hundred and ninety-six dollars and fifty cents,
with interest thereon, at the rate of twelve per cent, per annum,
until paid ; on which sealed note there is indorsed a payment
of six hundred and fifty-four dollars, dated August 22d, 1842,"
The attachment bond was executed by Cannon, Burner, New-
ingham, and Lionberges, the three first being described in the
condition, as the trustees of schools of the township. Writs of
attachment were issued at the same time to the counties of
Hancock and Adams, returnable to the June term, 1851. The
sheriff of the former county returned, that he had levied on cer-
tain tracts of land ; and the sheriff of the latter county made
return, that he had levied on certain real estate, and that he
could not find the defendant in the county. In August, 1851,
notice of the pendency of the proceeding w^as regularly pub-
lished in a newspaper of Hancock county. It stated " that a
writ of attachmeat had been sued out of the clerk's office of the
circuit court of said county, at the suit of the above-named
plaintiffs, against the estate of you, the said defendant, dated
the 30th day of April, 1851, for the sum of seven hundred and
twenty- one dollars and twenty- seven cents, directed to the sheriff
of said county to execute, which said writ has been returned
into the clerk's office, by the said sheriff, as levied upon the
following real estate of you, the said defendant, to-wit : the
northeast quarter of the northwest quarter of section nineteen,
in township four north, range eight west ; also west half of the
southwest quarter of section nineteen, township four north,
range nine west, Hancock county, Illinois ; now unless you, the
said Benjamin F, Morris, shall be and appear before the judge
of our said circuit court, on the first day of the next term there-
of, to be holden at the court house in Carthage, on the first
Monday of October next, give bail and plead to the said plain-
tiffs' action, judgment will be rendered against you by default,
for the above amount, and the premises attached ordered to be
sold to satisfy the same with costs," The declaration was filed
on the fourth of October, 1851, It was in debt upon a promis-
sory note, bearing date the 5th of June, 1840, by which the
defendant and two other persons jointly and severally promised
to pay, two years after date, to " Benjamin F. Marsh, school
commissioner and agent for the inhabitants of the county of
Hancock, for the use of township four north, of range six west,
the sum of seven hundred and ninety-six dollars and fifty cents,
with interest thereon at the rate of twelve per cent, per annum,
half-yearly in advance, from this date." It alleged, generally,

SPRINGFIELD.

Morris v. Trustees of Schools.

that the defendant thereby became liable to pay the plaintiffs the
amount of the note ; and that he had not paid the same to them,
or the school commissioner. There was no averment that the
inhabitants of the township had become incorporated. On the
8th of October, 1851, the default of the defendant was entered,
and judgment rendered against him for $353.55 debt, and
$387.13 damages, with an order for execution against the pro-
perty. In February, 1853, the defendant sued out a writ of error
from this court ; and at the October term, 1853, of the Hancock
circuit court, leave was given to the sheriff who levied the writ
of attachment issued to that county, to amend his return thereto,
which he thereupon did by adding, " and I cannot find the within
named Benjamin F. Morris in my county." The sheriff's term
of oflBce had previously expired. This leave was granted at the
instance of the plaintiffs in attachment, and without notice to the
defendant.

1. It is assigned for error that the bond was defective, because
not executed by the plaintiffs in attachment. Such an objection
cannot be made for the first time in this court. The statute pro-
vides that an attachment shall be dismissed for any insufficiency
of the bond, if the plaintiff will cause a sufficient bond to be filed.
The objection should have been made in the court below, and an
opportunity afforded the plaintiffs to obviate it by giving another
bond. Unless made and overruled in that court, it cannot be
insisted on here. The case of Miere v. Bursh, 3 Scammon, 21,
is to the point. That was a writ of error brought by a defend-
ant in attachment, and the error relied on was the insufficiency
of the attachment bond. This court held the bond to be
defective, but affirmed the judgment, because the objection was
not raised in the circuit court. It said: ''This defect cannot
now be assigned for error ; the party should have taken the
objection in the court below, where the plaintiff in the attachment
could have availed himself of the provisions of the statute by
filing a new bond."

2. It is objected that two writs of attachment were issued at
the same time to different counties. ^The statute provides :
" Where any attachment has issued out of the circuit court in
any county, it shall be lawful for the plaintiff, at any time
before judgment, to cause an attachment to be issued to any other
county of this State, where the defendant may have lands,
goods, chattels, rights, credits, or effects, which writ of attach-
ment the sheriff to whom it shall be directed shall levy on the
lands, goods, chattels, rights, credits, and effects of the defend-
ant in such county, and make return thereof as in other cases."
It is insisted that an attachment should not issue to a foreign

DECEMBER TERM, 185b. 269

Morris v. Trustees of Schools.

county, until the writ issued to the county in which the pro-
ceeding is pending has been returned, and it appears from the
sheriff's return that the levy is not sufficient to secure the pay-
ment of the plaintift"'s demand. But the statute does not admit
of such a construction. It expressly authorizes the plaintiff to
sue out a second attachment at any time before judgment. He
is not bound to wait until the first writ is returned. He may
sue out writs of attachment to different counties at the same time.
If he causes more property to be attached in this way, than is
reasonably necessary to secure the payment of his debt, he may
be held liable by the defendant for an excessive levy.

3. It is assigned for error that the sheriff of Hancock county
made no return on the writ, as to the defendant. The statute
requires the sheriff" to " serve said writ upon the defendant
therein if he can be found, by reading the same to him or de-
livering a copy thereof." It is the design of the law that a
defendant in attachment shall have personal no+ice of the pro-
ceeding, whenever that is practicable. It is the duty of the
officer to search for the defendant in his bailiwick, and make
return of the writ as in other cases. And the plaintiff cannot
properly proceed to judgment, until the return is made. This
objection must prevail, unless it was removed by the return
subsequently made. This question was in effect settled in the
case of Moore v. Purple, 3 Gilm, 149. It was there assigned
for error that the sheriff" had made no return to a writ of
inquir^f, and this court continued the cause to enable the
appellee to apply to the circuit court, for leave to the sheriff to
indorse the proper return on the process. On leave obtained in
the court below, and without notice to the appellant, the sheriff
made a return showing a due execution of the writ, and that
return was certified into this court. It was contended in that
case, as it is in the present, that notice of the application should
have been given. But the court answered: "We think not.
Amendments by sheriffs to their returns to process, are of course.
No resistance could have been made to the application to
amend. Should the sheriff make a false return, he is responsi-
ble for the consequences." Jhat decision is conclusive of this
case, except in one particular. Here the official term of the
sheriff had expired. Bat that did not prevent him from perfect-
ing the return. He amended the return as sheriff, and he may
be held liable in that character if it Avas false. It was not the
doing of a new act, but merely furnishing the legal evidence of
an act done while in office. This position is sustained by
adjudged cases. In Adams v. Robinson, 1 Pick. 461, a sheriff
was allowed to sign a return to an attachment, after he had

270 SPRINGFIELD.

Morris v. Trustees of Schools.

ceased to be an officer. In Gray v. Caldwell, Hardin, 63, a
sheriff was permitted to indorse a return on a writ of ad quod
damnum, several years he was out of office. See also
Childs V. Barrows, 9 Mete. 413 ; Gilraan /•. Stetson, 16 Maine
124 : Rucker v. Harrison, 6 Munf. 181 ; Hutchins v. Brown, 4
Harris & McHenry, 498 ; and Brown's Admr. v. Hill, 5 Pike,
78.(a)

4. It is insisted that the advertisement was defective. The
statute makes it the duty cf the clerk, on the return of a Avrit
of attachment, " to give notice for four weeks successively, in
some newspaper published in this State, most convenient to the
place where the court is held, of such attachment, and at whose
suit, against whose estate, for what sum, and before what court
the same is pending ; and that unless the defendant shall
appear, give bail, and plead within the time limited for his or
her appearance in such a case, judgment will be entered, and the
estate so attached will be sold." The notice in question was a
full compliance with this requirement of the statute. It con-
tained every thing that the statute prescribes. It stated by
whom and against whose estate the attachment was sued out,
the court in which it was pending, the time when the defendant
should appear, and the amount claimed by the plaintiffs ; and
that is all that the statute contemplates. It was not necessary
to state to what counties the writs of attachment issued, or to
give any description of the property attached.

5. It is alleged that the declaration was defective, in not
averring the incorporation of the township. The statute pro-
vides that a township, upon the election of trustees, " shall be a
body corporate and politic, by the name and style of trustees of
schools," &c. This suit was brought in the corporate name of
the township, and the declaration was upon a note made to the
use of the township, with an averment that the defendant be-
came liable to pay the same to the plaintiffs. That was suffi-
cient. It was not necessai-y to allege, that the township had
been regularly incorporated. It was enough to sue in the name
of the corporation, without showing on the face of the declara-
tion how it came into existence. Even if the suit had been
contested, it would have required a plea of nul tiel corporation,
to put in issue the incorporation of the township. Mclntire v.
Preston, 5 Gilm. 48.

6. It is contended that judgment was entered for a larger
amount than the affidavit showed to be due to plaintiffs. This
is not true in point of fact. A calculation of the amount due
on the note described in the affidavit, will show that there was

(a) Johnson v. Donnel, ante 100 ; Montgomery v. Brow^n, 2 Gil. 584 ;
Johnson v. Alderman, 35 111. K. 281 ; Dunn v. Rogers, 43 111. R. 203.

DECEMBER TERM, 1853. 271

Turncy v. Chamberlain.

no excess in the assessment. The aggregate of principal and
interest due on the 22nd of August, 1842, was $1,007.57. De-
duct from this amount the payment made on that day, it leaves
$353.57, a fraction more than the debt recovered. The interest
on this balance, until the judgment was rendered, Avas fully
equal to the damages awarded.

On the whole record, the judgment must be affirmed.

Judgine7it affirmed.

Nancy J. Tueney, plaintiff in error, v. Tdiothy Chamberlain,
defendant in error.

ERROR TO SCOTT.

Adverse possession, sufficient to defeat the legal title, must be hostile
in its inception, and continued uninterruptedly for twenty years.

Such possession must be actual, visible, and exclusive, acqi:ired and
retained under claim of title inconsistent with that of the true owner.
It need not be under a rightful claim or muniment of title.

If entry is not made under a paper title, the possession is considered
adverse to that portion only of the premises actually occupied. If
entry is made under a conveyance, occupation of a part Avill be an
adverse possession of the whole tract conveyed.

This case was originally commenced in Morgan Circuit Court,
but was removed to Scott county by change of venue. It was
tried at October term, 1853, before Woodson, Judge.

M. McCoNNEL and W. A. Turney, for plaintiff in error.
D. A. Smith and W. Brown, for defendant in error.

Treat, C. J. This was an action of ejectment brought by Tur-
ney against Chnmberlain, on the 20th of February, 1852, to recover
possession of lot one hundred and sixty, in the town of Jackson-
ville.

It was admitted on the trial, that Thomas Arnett was the
patentee of the half-quarter section, of which the lot in dispute
formed a part ; and that the defendant was in the possession of
the lot when the suit was commenced. The plaintiff read in
evidence a quit-claim deed of the half-quarter section from
Arnett to McConnel, dated the 21st of March, 1835, and

272 SPRINGFIELD.

Turney v. Chamberlain.

recorded the same day ; also a quit-claim deed of the same
tract from McConnel and wife to the plaintiiF, dated the 9th of
February, 1852. It was proved by a witness, that Arnett died
several years since, and that the plaintiff was one of his heirs at law.
The defendant introduced a deed of the lot in question from
Mason and wife to Eleazer Keath, dated the I6th of January,
1832, acknowledged the 24th of March, and recorded the 4th
of April, of the same year; also, a deed of the lot from Keath
and wife to the defendant, dated the 29th of March, 1847, and
recorded the 17th of May follovfing. Both of these deeds con-
tained covenants of warranty. He then read in evidence the
depositions of Gabriel Keath and James Whitehurst. Keath
stated, that Eleazer Keath built a house on the lot in the spring
of 1832, and moved into it during the fall of that year; he
occupied the house until the fall of 1833, when he removed to
Kentucky ; according to the best of his recollection, the mate-
rials for the house were upon the lot as early as the 1st of
February, 1832 ; the witness, on behalf of Eleazer Keath, em-
ployed Brown to get out the timber for the house early in 1831,
Whitehurst stated, that Eleazer Keath told him in January
1832, that he was going to build a house on the lot; there was
then a good deal of lumber on the lot, and Keath was at work
upon it ; there was no building on the lot, and no fence around
it. The defendant then called Brown, McCarley, Patterson,
and Bansdell. Brown testified that he hewed the logs for the
house during the summer of 1831. McCarley testified, that the
logs were hauled by himself and Brown, on or near the lot, in
the fall of 1831. Patterson testified, that he had resided on
the opposite side of tlie street to the lot ever since 1830, except
during the winter and spring of 1834, when he was absent from
the State ; that the logs were on the lot previous to the spring
of 1832, and Keath erected a log house on the lot during that
spring and summer ; the brother of the witness moved into the
house, and died there the following winter ; Keath then occu-
pied the house till the next summer, when he removed to Ken-
tucky ; he left a man to attend to his business, and rent the
house ; the house was occupied by some one under Keath, until
the defendant took possession under his purchase in 1845 ; the
lot was inclosed by a post and rail fence in the spring of 1833 ;
Mason lived in the country, and claimed to own the lot, when
he sold it to Keath ; Keath claimed to be the owner of the lot
when the logs were hauled upon it ; Mason removed to Ten-
nessee, and died there many years since. Ransdell testified,
that the logs were pat upon the lot in the fore part of 1832, and
the house was built in the summer following ; according to the

DECEMBER TERM, 1853. 273

Turncy v. Chamberlain.

recollection of the witness, the house was constantly occupied after
Keath removed to Kentucky.

The plaintiff then called McConnel, the grantor of the plain-
tiff, who testified, that there were no improvements on the lot in
the spring of 1832, but that house logs were then lying on or
near it ; the house was built during the summer of that year, and
occupied until Keath removed to Kentucky ; during the winter
and spring of 1834, the house and lot were unoccupied ; the
witness had often seen the house vacant, and the fence down ;
Arnett resided in the neighborhood of Jacksonville from the
time the improvements were made until his death ; the witness
was asked why he had not asserted a claim to the lot under his
deed from Arnett, and he answered, that he knew nothing
about it.

The jury returned a verdict in favor of the defendant, and the
court refused to grant a new trial.

The plaintiff, having deduced title from the patentee was enti-
tled to recover, unless Keath and the defendant held the lot
adversely for twenty years before the bringing of the suit. The
law on this subject is well settled. To constitute an adverse pos-
session, sufficient to defeat the right of action of the party w^ho
has the legal title, the possession must be hostile in its inception,
and so continue without interruption for the period of twenty
years. It must be an actual, visible, and exclusive possession,
acquired and retained under claim of title inconsistent with that of
the true owner. It need not, however, bounder a rightful claim ;
nor even under a muniment of title. It is enough that a parry
takes possession of premises claiming them to be his own ; and
that he holds the possession for the requisite length of time, with
the continual assertion of ownership. If he does not make the
entry under a paper title; his possession is considered as adverse
only to the portion actually occupied. In such case, he acquires
no interest beyond the limits of his inclosure. But where a party
enters under a conveyance of a single tract of land, his actual
occupancy of a part, with a claim of title to the whole, will inure
as an adverse possession of the entire tract ; and such occupa-
tion and claim, if regularly continued for twenty years, will bar
the right of entry of the real owner. In such case, the posses-
sion is regarded as co-extensive with the description in the deed ;
and the original entry as a disseizin of the owner to the same
extent.(a) Lessee of Clark v. Courtney, 5 Peters, 318 ; Elli-
cott V. Pearl, 10 ib. 412 ; Jackson v. Woodruff, 1 Cowen, 276 ;
Jackson t^. Halstead, 5 ib. 217 ; Jackson v. 01tz,8 Wend. 440 ;
Jackson v. Warford, 7 ib. 62 ; Humbut v. Trinity Church, 24

(a) Davis v. Easley, 13 111. R. 200 ; Bowman v. Wettig, 39 111. R. 426, &c. ;
Dills V. Hubbard, 31 111. R. 328.

274 SPRINGFIELD.

Turney v. Chamberlain.

ih. 587 ; Noyes v. Dyer, 25 Maine, 468 ; Bailey v. Carleton, 12
New Hamp. 9 ; Crowell v. Beebee, 10 Ver. 33 ; Davis v. Easley,
13 111. 192.

In the present case, we think the evidence warranted the con-
clusion, that Keath and the defendant were in the adverse posses-
sion of the lot for twenty years prior to the commencement of the
action. It is evident that Keath entered upon the lot before the
20th of February, 1832. He received a conveyance of the lot in
January of that year, and avowed his purpose of erecting a house
thereon. He had previously procured the materials, and had
them delivered on the lot. His entry was co-extensive with the
description in the deed. It was also clearly hostile to the title of
Arnett. He claimed the lot as the grantee of Mason, and not as
the tenant of Arnett. Neither his possession, nor that of the
defendant, was subservient to the title of Arnett or his assignee.
The possession of Keath was also visible and exclusive. He took
all the possession of the lot that the circumstances permitted.
The delivery of the building materials, the erection and occupau'
cy of the house, and the inclosure of the entire lot, were unequiv-
ocal and connected acts of possession. They clearly indicated
that he claimed the lot as his own. They fully apprised Arnett that
the lot was in the adverse possession of another. The evidence was
indeed contradictory upon the question, whether Keath, by his
tenants, continued in the actual possession of the lot, from the
time of his removal to Kentucky until the purchase by the defend-
ant. But it was the province of the jury to pass upon this evi-
dence, and we are not prepared to say that their decision was
erroneous.

Some exceptions were taken to the giving and refusing of cer-
tain instructions ; but upon a careful consideration of the instruc-
tions, we are satisfied that the court committed no error to the
prejudice of the plaintiff.

The judgment is afl&rmed.

Judgment affirmed.

DECEMBER TERM, 1853. 275

Humphreys v. Spear et al.

Alexander B. V. Humphreys, appellant, v. D. Spear, et al.

appellees.

APPEAL FROM SANGAMON.

Books of account are admissible in evidence in connection Avitli the tes-
timony of tlie cleric wlio kept them, who gave testimony tending to
prove the correctness of the entries. ('0

This cause was heard by Davis, Judge, at March term, 1853,
ol: the Sangamon Circuit Court. The opinion furnishes a full
statement of the case.

Lincoln & Herndon, for appellant.

B. S. Edwards and E. B. Herndon, for appellees.

Treat, C. J. This was an action of assumpsit, brought by
D. & T. P. Spear against Humphreys. The declaration con-
tained a count for goods sold. The plea was rxOn-assumpsit.
It appeared in evidence that the plaintiffs were merchants,
and had books in which their accounts with customers were
kept ; and that they had a merchandise account against the
defendant, consisting of entries in their books amounting to
^135.71. By witnesses speaking from memory, and by orders
drawn by the defendant, they proved the correctness of their
account to the extent of ^57.33, and leaving it unproved as to
the remainder, consisting of numerous items. They then proved
by their clerk, that he and the plaintiffs were the only attendants
of the store ; that they served their customers promiscuously,
each entering upon a slate the credit sales made by him during
the day, and they all assembled together at night, and the clerk
transcribed the entries from the slate into the book, called the
blotter or daybook ; that most generally, when transcribing the
entries, he would remember having seen at the store, during
the day, the persons against whom the plaintiffs made the slate
entries, but could not say he so remembered in all cases, and
rather presumed there were some in which he did not ; that he
remembered selling goods to the defendant, but could not recol-
lect the items ; that sometimes Avhen transcribing entries against
the defendant, he remembered seeing him during the day. The
plaintiffs then proved by several of their customers, that they
had settled with the plaintiffs by their books, and found them
to be correct ; and they thereupon offered to submit the books

0/) Laws of 186T p. 184, sec. 3 ; Boyer v. Sweet, 3 Scam. R. 120 and note.

276 SPRINGFIELD.

Humphreys v. Spear et al.

to the jury, as evidence of the correctLess of the remainder o£
their account. The court permitted the books to go to the jury,
and the defendant excepted. The jury found a verdict in favor
of the plaintiffs for the amount of the account, and judgment
was rendered thereon.

This court decided in the case of Boyer v. Sweet, 3 Scam.
120, that the books of account of a party were admissible in
evidence to prove an account of various items, in connection
with proof that some of the articles were delivered about the
time the entries purported to have been made ; that the entries
were in the handwriting of the party ; that he kept no clerk at
the time ; and that persons having dealings with him, had set-
tled by the books, and found them to be fair and correct. All
of these elements appear in the present case, except that the
plaintiffs kept a clerk, by whom the entries in the books were
made. But they introduced the clerk as a witness, and he gave
testimony tending to prove the correctness of the account. It
is very clear that the books were admissible in evidence, in con-
nection with the testimony of the clerk. It is well settled in
this country, that entries made by a clerk, in the regular and
usual course of business, are admissible in evidence after his
death, on proof of his handwriting ; and during his life, if au-
thenticated by him. Such entries form part of the res gestse,
and are admissible as original evidence. This subject is
thoroughly examined in the notes of Hare & Wallace to the
case of Price v. Torrington, in 1 Smith's Lead. Gas. 282. See,
also, 1 Greenl. on Evid. §§ 115 to 120. The books are ad-
mitted with the testimony of the clerk, or in case of his death
with proof of his handwriting ; and the jury are to determine
what weight shall be given them, in connection with all the
circumstances of the case. If it appears that some of the
goods were delivered contemporaneous with the entries made
by the clerk, and that the books were fairly and honestly kept,
the jury may reasonably conclude that the entire account is
correct. In the case of a runnino; account at a store, consistins;
of numerous items, better evidence is not generally attainable.
It can hardly be expected, that a merchant will be able to prove
the delivery of every article charged to a customer. The proof
in this case was probably as full as can ordinarily be made.
There was nothing in the case calculated to cast suspicion on
the books, or to impute to the plaintiffs a want of fairness or
honesty in their dealings as merchants. We think the jury were
justified in allowing them the whole of their account.

The judgment is affirmed.

Judgment affirmed.

DECEMBER TERM, 1853. 277

Enos V. Capps.

ZiMRi A. Enos, plaintiff in ciTor, v. Jabez Capps, defendant in

error.

ERROR TO SANGAMON.

A party having a right of action against the ancestor, is not (in tliis
State) to be delayetl in his remedy because of tlie non-age of those on
whom the law casts the liabilit3^

Legal and equitable remedies stand upon the same footing in tliis
respect.

The facts of tliis case appear in the opinion of the court.

W. H. Herndon, for plaintiff in error.

S. T. Logan, for defendant in error.

Treat, C J. Capps filed a bill in chancery against the heirs
at law of P. P. Enos, alleging that their ancestor acquired the
title to a tract of land in trust for the complainant, and prajing
that they might be compelled to convey the same to him. A
decree was entered in September, 1836, requiring the heirs to
convey the land to the complainant. They were then all minors.
In July, 1853. Z. A. Enos, one of the heirs, sued out a writ of
error to reverse the decree. The complainant pleads that the
same was not sued out within five years after the entering of the
decree. There is a demurrer to the plea.

The common law gave an infant, who was sued in respect of
land derived from his ancestor, the right to resort to his parol
demurrer, the effect of which was to stay the action until he
arrived at full age, when the cause might be proceeded with,
upon his being re-summoned into court. In equity, he could
not insist upon his non-age to suspend the suit, but it proceeded
to a hearing and decree. It was, however, the established prac-
tice to insert a clause in the decree, giving him a day to show
cause against it after his coming of age ; and he was to be
summoned into court for that purpose after attaining his
majority. The decree was of no force against him, until made
absolute by his failure to show cause against it. 1 Daniel's C.
P. ch. 4, § 7 ; 1 Smith's C. P. 418 ; McClay v. Norris, 4 Gilm.
370. That practice is unquestionably applicable here, unless it
has been changed by statute. ' It is insisted by the plaintiff in
error that the decree below was erroneous, because no day was
given him to show cause against it after coming of age ; and

ILL. R. VOL. XV. 19

278 SPRINGFIELD.

Enos V. Capps.

that the statute of limitations does not run as to a decree
against an infant, until he is again brought before the court,
and the decree is made absolute against him. Our statute pro-
Aades that persons having legal or equitable causes of action
against heirs or devisees, in respect of real estate descended or
dev'ised to them, ''shall not be delayed for the non-age of any of
the parties." See R. S. ch. 44. It was the intention of the
legislature to change the existing law, and render remedies
against heirs and devisees more summary and effective. A
party having a right of action against the ancestor is not to be
delayed in his remedy, because of the non-age of those on
whom the law casts the liability. This provision takes away
not only the common law privilege of the heir to stay the action
until he comes of age, but his right in equity to show cause
against a decree after attaining -his majority. In this respect,
it puts legal and equitable remedies against heirs on the same
footing. The cause is to proceed without delay, and the
judgment or decree is binding from its rendition. There was
as much practical delay and inconvenience in enforcing an equit-
able as a legal demand against an heir. The complainant could
not derive any benefit from his decree, until the heir became of
age ; and he was again brought before the court, and the decree
made absolute against him. It was this very delay and incon-
venience that this statute was designed to obviate. If this view
be correct, the decree in question was in force against the heirs
on its rendition. The law gave them no day to show cause
against it. Instead thereof, it gave them the right to sue out a
writ of error for its reversal, at any time within five years after
arriving at full age. If the plaintiff in error obtained his majority
within five years before this writ of error issued, he should have
replied that fact to the plea. As he does riot show himself
entitled to maintain the writ, it will not be necessary to pass upon
the various objections taken to the decree. However erroneous
the decree may be, it is irreversible on error. Unless absolutely
void, it is now conclusive upon the parties. The demurrer must
be overruled, and the writ of error dismissed.

jr?'il of erro7' disndssed.

DECEMBER TERM, 1853. 279

Pickett V. Hartsock.

Ira B. Pickett, appellant, v. Joseph Hartsock, appellee.
APPEAL FROM GREENE.

Upon the demise of a judgment debtor, if an execution issue upon
the judgment, and tiie decedent's real estate is sold tiiereon, and a
sheriti"'s deed obtained witliout a notice liaving been first given totlie
executor or administrator of said estate, as required bj'Uie statute,
no title passes.

"When property is sold under execution, and a sheriff's deed thereon
is offered in evidente, but no judgment is proved to support such exe-
cution, no title passes to the purchaser.

Quare, whether a judgment obtained against the conservator of an
insane person, becomes a lien upon the real estate of such insane
person which can be enforced by execution.

A judgment rendered for taxes on a day prior to the day named in the
notice of the collector, is void.

Also a judgment rendered for taxes, when the report of the collector
does not substantially comply with the statute, is equally void.

This cause was heard and decided by Woodson, Judge, at
..September term, 1853, of Greene Circuit Court.

J. M. Palmer and A. W. Cavarly, for appellant.

D. A, Smith, for appellee.

Treat, C. J. This was an action of ejectment, brought by
Pickett against Hartsock, to recover the possession of the east
half of the northeast quarter of section 29, and the east half of
the southeast quarter of section 33, both in township eleven
north, of range ten west; and lot 15 in the town of Greenfield ;
all situated m Greene county.

It was admitted on the trial, that the defendant was in the pos-
session of. the premises when the suit was commenced ; that
Ichabod Valentine was the patentee ; that by an inquisition of
the Greene circuit court, in 1841, he Avas found to be a lunatic, and
George J. Valentine was appointed conservator of his estate ;
that he remained insane till his' death, in 1845, when George J.
Valentine was appointed administrator, and still continued to act
as such ; and that the heirs at law were George J. Valentine,
James M. Valentine, Emily Boring, Esther H. Goode, Eliza A.
Boring, Nancy Loftow, and Mrs. Gillham.

The plaintiff then introduced the following evidence, in refer-
ence to the east half of the northeast quarter of section 29. A
judgment of the Greene circuit court, rendered on Friday, the

280 SPRINGFIELD.

Pickett r. Hartsock.

4tli day of April 1845, for the taxes on this tract of land for the
previous year. A precept issued on the judgment. A sheriff's
deed to Coonrod, and a deed from Coonrod to the plaintiff. The
notice published by the collector stated that he would apply for
judgment on the first Monday of April, which was the seventh
day of that month.

He also adduced the following evidence, as to the east half of
the southeast quarter of section 33. A judgment of the
Greene circuit court, rendered at the October term, 1848, for
the taxes on this tract for the previous year. A precept issued
thereon. A sheriff's deed to Orr ; a deed from Orr to Yates ;
and a deed from Yates to the plaintiff. The collector's report was
in these words : —

"State of Illinois, Greene county.

Collector's Office, .August 8, 1843.
To the honorable judge of the circuit court of Greene county.
The collector of public revenue do ask of your honor, judgment
on the following lands and town lots, situated in said county, for
the vear 1842.

S. Valentine, 80 acres E. ^ S. E. i 33, 11, 10. Valuation, 320
Tax, 144. Costs, 22 cents.

David Pinkertox, Collector of Greene county."

The plaintiff also exhibited a tax title to the lot in Greenfield,
but as the title is conceded to be defective, it will not be further
noticed.

He also introduced a quit-claim deed to himself, for the prem-
ises in controversy, from George G. Valentine, James M.
Valentine, Emily Boring, Esther H. Goode, and Eliza A. Boring,
bearing date the 1st of January, 1851.

The defendant introduced the following items of evidence : —

1. A judgment of the Greene circuit court, rendered at the
April term, 1843, as follows :
"F. T. Bostick v. George J. Valentine. T. C. on promises.

"•It appearing that the defendant has been duly served with
process, he was solemnly called and came not, but made default :
whereupon it is adjudged, that the plaintiff recover of the defen-
dant the damages, in the declaration mentioned, and because
the amount of the damages are unknown to the court, the clerk
is ordered to asses the same ; and the clerk having assessed the
damages to one thousand five hundred and fourteen dollars and
twenty-seven cents, as appears by his report which is approved ;
it is adjudged, that the plaintiff recover the amount of damages
aforesaid, together with her costs herein, and she have execution
hereof."

DECEMBER TERM, 1853. 281

Pickett V. Hartsock.

2. That an execution Avas issued on this judgment in April,

1843, and returned in July, by order of the plaintiff.

3. Amended judgment of the August term, 1844, in these
words :

•*' Frances T. Bostick, executrix of ManoahBostick, v. George J.
Valentine, conservator of the estate of Ichabod Valentine, an
insane person. Trespass on the case on promises.
" Now at this day came the plaintiff, by Doyle, her attorney,
and the defendant, George J. Valentine, in his own proper per-
-son ; and it being suo-orested to the court that there is error in
-entering the judgment of this court in the said cause, at the
April term, 1843, and the court being satisfied that there is error
in the entering of said judgment, to wit, the judgment is ren-
dered against the said George J. Valentine in his individual
capacity, and not as conservator of the estate of said Ichabod
•Valentine, an insane person, as it should have been, and the said
George J. Valentine consenting thereto ; it is considered and
adjudged by the court that the said judgment be amended and
corrected, and that the said plaintiff recover of the said George
J. Valentine, conservator of the estate of Ichabod Valentine, an
insane person, the damages in the said judgment mentioned, and
that she have execution therefor against the goods and chattels,
lands and tenements of the said Ichabod Valentine, in the
hands of the said George J. Valentine, as conservator of his
estate."

4. That an execution was issued on the 27th of August,

1844, and returned in November by order of the plaintiff. The
■execution described the judgment as rendered at the April term,
1843.

5. A notice in these words : "To George J. Valentine admin-
istrator of Ichabod Valentine, deceased. You will please take
notice that I hold a judgment against ycu in the Greene circuit
court. State of Illinois, as conservator of the estate of your
father, Ichabod Valentine ; said judgment in my favor for
.^1,514.27 and costs, rendered April 4, 1843 ; your father having
died, and you having taken out letters of administration on his
estate, I shall proceed to cause an execution to issue upon said
judgment until the same is satisfied.

Frances T. Bostick.
August 10, 1847."

■" I acknowledge service of the Avithin notice.

George J. Valentine, Administrator.
August 10, 1847."

282 SPRINGFIELD.

Pickett V. Hartsock.

6. An execution issued on the judgment on the 19th of
March, 1851, under which the premises in contoversy were sold
and conveyed by the sheriff to the defendant. This execution
described the judgment as entered at the August term, 1844.

On the foregoing state of facts the court found the issue for
the defendant, and rendered judgment in his favor.

The tax judgment of the 4th of April, 1845, was clearly void.
It was rendered prior to the day named in the notice of the col-
lector. The action of the court was premature and unauthorized.
It had no jurisdiction over the case before the 7th of April. Up-
to that day owners had the right to pay the taxes charged against
their property, or to make preparations to resist the application
for judgment.

The judgment for taxes entered at the October term, 1843,
was equally invalid. The report of the collector was substan-
tially defective. It was not sufficient to invest the court with,^
jurisdiction. The statute required the report to commence : "List

of lands and other real estate, situated in the county of ,

and State of Illinois, on which taxes remain due and unpaid for
the year herein set forth." The collector made no attempt to
comply with this direction. It is noAvhere stated in the report for
what year the taxes Avere assessed. This court said, in Spellman
V. Curtenius, 12 111. 409 : " To give the court jurisdiction, it is
essential that the collector should make a report and give notice
of the application for judgment, substantially as required by the
statute. The report and notice are the foundation of the whole
proceeding, and without them the court would have no authority
to enter judgment. "(a)

The plaintiff obtained no title under these judgments. But
he acquired title to five-sevenths of the premises by the deed of
the 1st of January, 1851, unless that title was divested by the
proceedings on the judgment against the conservator of Ichabod
Valentine. In the absence of all proof to the contrary the pre-
sumption is that he was a bona fide purchaser from the heirs.

The statute declares that a ''judgment shall be a lien on such
lands, tenements and real estate, from the last day of the term
in which the same may be rendered, for the period of seven years;
provided, that execution be issued at any time within
one year on such judgment, and from and after the said seven
years the same shall cease to be a lien on any real estate, as
against bona fide purchasers or subsequent incumbrancers by
mortgage, judgment or otherwise." If the judgment should be
considered as entered at the April term, 1843, more than seven
years intervened between its rendition and the issuing of thfr

(fl) Morgans r. Camp, 16 111. R. 176 and notes. Post 449.

DECEMBER TERM, 1853. 283

Pickett V. Hartsock.

execution under ■\vliicli the defendant purchased the premises.
The judgment in the mean time, ceased to be a lien, as against
bona fide purchasers and subsequent incumbrancers. It couhl
not, therefore, be enforced to the prejudice of the plaintiff. The
defendant could not acquire title to more than two-sevenths of
the premises. But the execution purports to have issued on a
judgment recovered in 184-4 ; and the sheriff's deed sould not
be supported by the production of a judgment rendered in a pre-
vious year.

If the judgment should be regarded as rendered at the August
term, 1841, there is still a fatal objection to the detendaiU's
title. The statute provides, that on the death of a party against
whom a judgment has been obtained, "it shall be lawful for
execution to issue against the lands and tenements of said
deceased person or persons, without first reviving the judgment
against their heirs or legal representatives ; provided, however,
the plaintiff or plaintiffs in execution, or his or their attorney,
shall give to the executor or administrator, if there be any, of
said deceased person or persons, at least three months' notice
in writing, of the existence of said judgment before the issuing
of execution." In this case, the judgment creditor gave notice
of a judgment obtained in 1843. That did not authorize an
execution to issue on a judgment recovered in a subsequent
year. This provision of the statute dispensing with the neces-
sity of reviving a judgment by scire Jacias, must be substan-
tially complied with.

It is clear that the defendant cannot assert title under the
sheriff's deed. If the judgment was rendered in 1843, the ex-
ecution did not issue upon it. If rendered in 1844, the execu-
tion was issued without authorit3^ In any point of view, he
acquired no title. (a)

The case has been treated as if the judgment against the
conservator was a lien on the lands of Ichabod Valentine, and
the lien might be enforced by execution. The court must
be understood as intimating no opinion on this question.

The judgment must be reversed, and the cause remanded.

Juds;ment reversed.

{n) Pod 307. Stone et al. v. ^\^ood, 16 111. R. 176 ; Lafliu r. Herring-
ton, 16 111. R. 303 ; Finch ct al. i\ Martin et«L 19 111. R. Ill ; Scamuion d
(d. V. Swartwout, 35 111. R. 343 ; Ransom v. Williams, 2 Wal. U. S. R. 318 ;
Mitchell V. St. Maxeut's Lessee, 4 Wal. U. S. R. 243; Littler r. People
&c. 43 111. R. 194 ; where one defendant dies — Erwin's Lessee v. Dundas,
4 How. U. S. R. 58 ; Littler v. People, 43 111. R. 194.

284 SPRINGFIELD.

Marsh et at. v. The People.

Benjamin F. Marsh et al.^ appellants, v. The People, appel-
lees.

APPEAL FROM IIAXCOCK.

An administrator dc bonis non, appointed to succeed an administrator
Avhose letters have been revoked, has authority to call upon the
removed administrator to account fully for his administration of the
estate ; and may maintain all necessary actions for the purpose, and
may moreover make him answer in damages, for any mal-administra-
tion of the estate. Aliter, Avhere the former administrator dies.

The acceptance of the probate court of the resignation of an adminis-
trator, amounts to a revocation of his letters ; and if there are other

• administrators, the burden of administration is cast upon them.

The refusal of an administrator to perform the duties of his trust, is a
sutficient cause for revoking his authority.

One of several administrators, is liable for the acts done by either,
Avhile they all continue in office. This liability ceases to attach to
such of them as are removed from office, for all acts done after the
removal.

This cause was heard before 0. C. Skinner, Judge, at Octo-
ber term, 1853, of the Hancock Ch-cuit Court.

C. B. Lawrence and S. T. Logan, for appellants.

G. Edmunds and 0. H. Browning, for appellees.

Treat, C. J. This was an action of debt, brought in the
name of the people to the use of English, administrator dc bonis
7ion of Wilcox against Marsh, Felt, and Mellen, former admin-
istrator of Wilcox, and Chandler, Robinson, and Morris, their
sureties, upon the administration bond. The declaration set
forth the grant of administration to Marsh, Felt, and Mellen on
the 12th of October, 1839, the execution of the bond in question
by the defendants on the same day, the revocation of the letters
of administration on the 20'th of May, 1846, and the appoint-
ment and qualification of English as administrator de bonis non
on the 21st of July, 1846 ; and it averred that a large amount of
property, belonging to the estate of Wilcox, came to the hands
of the former administrators between the grant and revocation
of the letters of administration ; and it assigned as breaches of
the condition of the bond, the failure of the administrators to
make an inventory of the property, the conversion of the same
to their OAvn use, their neglect to collect and pay the debts due to
and from the estate, and their refusal to account for and deliver

DECEMBER TERM, 1853. 285

Marsh et al. v. The People.

to English the property and effects of the estate. The declara-
tion also alleged that Marsh and Felt sold the real estate of
Wilcox, under a license obtained by them from the circuit court
in May, 1842 ; and assigned as a breach of the condition of the
bond, their refusal to account for and pay over the proceeds to
English.

The defendants filed several pleas, on some of -which issues of
fact were formed, and to others demurrers were sustained. Of
the latter, it will only be necessary to notice the 19th and 20th
pleas, which were mterposed by the defendant Mellen, alone.
These pleas related only to the breaches assigned for acts done
by Marsh and Felt subsequent to the 22d of March, 1842, and
they alleged in substance, that Mellen executed the bond as prin-
cipal,, and not as security for his co-administrator ; that on the
22d of March, 1842, he tendered his resignation as administra-
tor, which was on that day accepted by the probate court ; and
that he had not since intermeddled with the estate.

On the trial, the plaintiff read in evidence an order of the pro-
bate court, entered on the 22d of March, 1842, accepting the
written resignation of Mellen as one of the administrators ; also
an order of the same court, entered on the 20th of May, 1846,
revoking the letters of administration as to Marsh and Felt ; also
the proceedings in a case of the application of Marsh and Felt
for leave to sell the real estate of Wilcox, commenced in 1843,
and concluded in 1844, wherein an order of sale was made by
the circuit court, and under which order Marsh and Felt sold and
conveyed the real estate ; and also the proceedings in several
cases in the circuit court, commenced by Marsh and Felt as
administrators of Wilcox, after the 22d of March, 1842, and in
which they recovered judgments.

On the the foregoing and other evidence, the court found the
issues for the plaintiff, and assessed the damages upon the
breaches to $2,204.60 ; and judgment was rendered against the
defendants for the penalty of the bond, to be discharged by the
payment of the damages and costs.

First. Had the administrator de bonis non the right to
assign breaches of the condition of the bond ? It was held by
this court, in Cowan v. Kirkpatrick, 14 Illinois, 1, and Newhall
V. Turney, ib. 338, that an administrator de bonis non could not
compel the personal representative of a deceased administrator
to accounts for assets already administered upon ; but that the
creditors or distributees of the estate could alone maintain such
an action. We are entirely content with the decision made in
those cases. In both of them an administrator de bonis non had
been appointed upon the death of the first administrator. It is

286 SPRINGFIELD.

Marsh et al. v. The People.

undoubtedly the law, irrespective of statutory regulation, that
the authority of an administrator de bonis non only extends to
such property and effects of the intestate as remain in specie,
and have not been administered by the former administrator.
Bat this principle is not applicable to the prcoent case. The
statute has prescribed a different rule for such cases. The 75th
^, ch. 109, R. S., provides : " and in all cases Avhere any such
executor or administrator shall have his letters revoked as afore-
said, he shall, nevertheless, be liable on his bond, to such subse-
quent administrator or administrators, or to any other person or
persons aggrieved, for any mismanagement of the estate thus
committed to his care as aforesaid ; and such subsequent admin-
istrator or administrators may have and maintain actions of
trover, debt, detinue, account, and on the case, against such
former executor or administrator, for all such goods, chattels,
debts, and credits as shall have come to the possession of him or
her, and "which shall be withheld, or may have been wasted,
embezzled, or misapplied, and no satisfaction made for the
same." This provision enlarges the powers of an administrato'-
de bonis non, appointed to succeed an administrator whose let-
ters have been revoked. It gives him authority to call upon the
removed administrator to account fully for his administration of
the estate. It expressly authorizes him to maintain all neces-
sary actions for the purpose.(a) But this provision has no appli-
cation to the case of the death of the former administrator.
It leaves such cases to be governed by the rules of the common
law. Without in the least questioning the propriety of the
decisions to which reference has been made, we hold that where
the letters of an administrator are revoked, the administrator
de bonis non may maintain the appropriate actions against him,
and compel him not only to account for all the property and
effects of the intestate that has come to his hands, but to
answer in damages for any mal-administration of the estate.
English, therefore, had the right to assign breaches of the bond,
and enforce any liability of the former administrators, incurred
by their laches, fraud, or default in the administration of the
estate.

Second. Did Mellon cease to be administrator on the accept-
ance of his resignation? The law in force at the time gave
him no right, as a matter of course, to resign his trust. With-
out the sanction of the probate court, his resignation would
have been unavailing. He would still have been one of the
administrators, competent to exercise the functions and subject
to the responsibilities of the office. But we are inclined to
hold that the acceptance of his resignation by the probate court,

(a) Short v. Johnson, 25 111. R. 496 ; State v. People, 25 111. R. 602.

DECEMBER TERM, 1853 . 287

Marsh et al. v. The People.

amounted to a revocation of the grant of administration as to
liim, and from that time cast upon Marsh and Felt the burden
of the administration. The court had power to remove him
from office, and the acceptance of his resignation may be con-
sidered as an exercise of that power. The refusal of an admin-
istrator to perform the duties of his trust, is a sufficient cause
for revoking his authority, and conferring it upon another ; and
the removal of one of several administrators, without appoint-
ing another in his place, devolves upon the others the entire
management of the estate. The resignation may be regarded
as a declaration by Mellen that he would no longer participate
in the administration of the estate, and the acceptance of the
resignation by the court as a revocation of his authority. In
the opinion of the court, Mellen ceased to be administrator on
the 22d of March, 1842.

Third. Is Mellen liable for the acts of Marsh and Felt,
done after he ceased to be administrator? The three were ap-
pointed joint administrators of the estate, and gave a joint bond
for the performance of their duties. They executed the obliga-
tion as principals, aud other persons became responsible as their
sureties. It is clear that Mellen is liable for the acts of either,
done while they all continued to be administrators. They had
a joint interest in the property and effects of the estate, and
were jointly bound to discharge the duties of the trust. Mellen
had as much authority over the estate as either of the other ad-
ministrators, and was equally answerable for its management.
But this common authority and liability ceased on his removal
from office. His control over the estate was gone, and he
ceased to be responsible for its future management. All the
powers and duties of the administration then devolved upon
Marsh and Felt, who alone became responsible for their exer-
cise. Mellen ought not to be held liable for their subsequent
maladministration of the estate. This question arose in the case
of Brazer v. Clark, 5 Pickering, 96 ; and it was decided that the
estate of a joint executor was not liable for the defaults of the
surviving executor, arising after the death of the former. The
court said : "By the tenor of their bond, the executors are
bound only for the joint executorship ; they may be answerable
for all defalcations which accrue during that trust, and their
estates be liable for the deficiencies, notwithstanding they have
had no participation in the negligence or fraud; but they are
not bound in this manner for acts or neglects which take place
after their power has ceased. The survivor succeeds to the
whole authority and power, and he alone and those who are sure-
ties for hmi, are responsible." Again, "It has been urged,

288 SPRINGFIELD.

Guinard v. Heysinger et al.

however, that Clark's estate, if not answerable as principal for
the default of Winship after Clark's death, is at least liable on
the ground of suretyship, Clark being to be considered in the
light of a surety ; but this would be changing the character of
his engagement. He was principal in the bond and liable as
such, and when discharged from that liabilty, he incurred no
other." The case of Towne v. Ammidown, 20 Pick. 535,
asserts the same doctrine.

The court erred in sustaining the demurrers to the nineteenth
and twentieth pleas. For all defaults in the administration of
the estate, happening before the 22d of March, 1842, Mellen is
■jointly liable with Marsh and Felt. But for those arising sub-
s equent to that time, English must look exclusively to Marsh
and Felt, and the sureties on the^ administration bond. Mellen
is not liable on account of the real estate, for it was converted
into assets after the determination of his authority.

The judgment must be reversed, and the cause remanded.

Judgment reversed.

Brutus Guinard, appellant, v. Barent Heysinger et al.,
appellees.

APPEAL FROM GREENE.

In an action on a judgment, a defendent cannot interpose a defense

wliich he might have made in the original suit.
If a party suffers a judgment to pass against him by a wrong name,

lie is estopped from availing himself of the misnomer in an action on

that judgment.

The opinion shows the facts of the case. The cause was
heard before Woodson, Judge, at April term, 1853, of the
Greene Circuit Court.

J. M. Palmer, for appellant.

D. A. Smith, for appellees.

Treat, C. J. This was an action of debt, brought by Gui-
nard against Barent and Henry Heysinger. The declaration
was upon the record of two judgments, obtained in the supreme

DECEMBER TERM, 1853. 289

Guiuard v. Heysinger ct al.

court o£ the State of New York, by the plaintiff against the
defendants. Barent He,ysinger pleaded in abatement of the
action, that he was called and known by the name of Barney
Heysinger. The plaintiff filed two replications to the plea. 1.
That the defendant was the same person against whom the judg-
ments were recovered by the name of Barent Heysinger. 2.
That the process in the original actions was personally served on
the defendant by the name of Barent Heysinger, and that the
plaintiff recovered therein the judgments in question against the
defendant by that name. The court sustained a demurrer to the
replications, and quashed the writ.

The replications, presented a perfect answer to the plea in
abatement. The defendant should have taken advantage of the
misnomer in the original actions. He might then have success-
fully urged the objection. But he is conclued from the assertion
of any such defense in this suit. The rights of the parties were
determined in the former actions, and cannot be inquired into in
this proceeding. In an action on a judgment, the defendant can-
not interpose any defense which he might have made in the orig-
inal suit. All such matters are res ac/judicata. This principle
is amply sustained by authority. The case of West v. Sutton, 2
Lord Raymond, 853, may be referred to as peculiarly applicable.
That was scire Jacias on a judgment, and the defendant pleaded
in abatement, that the plaintiff was an alien enemy. The court
held the plea to be bad,because the matter should have been plead-
ed in abatement of the original action. Numerous other cases
might be cited in support of the position.

There is another rule of law equally applicable to this case.
If a party execute an obligation by a wrong Christian name, he
should be sued on the instrument in that name ; and if be plead
the misnomer in abatement, the plaintiff may state the facts spe-
cially in a replication, or reply generally that the defendant is as
well known by that name as the other ; and, in either case, the
replication will be sustained by the production of the instrument.
Field V. Winlow, Croke's Eliz. 897 ; Hackman v. Shotbolt,
Dyer, 279 ; Linch v. Hooke, 1 Salkeld PL 17 ; Gould v.
Barnes, 3 Taunt. 504 ;. Wooster v. Lyons, 5 Blackford, 60. It
was therefore, incumbent on the plaintiff to sue the defendant in
the name in which the judgments were rendered against him.
The latter suffered the judgments to pass against him by a
wrong name, and he is estopped by the record from availing
himself of the misnomer in an action on the judgments. (a)

The judgment must be reversed, and the cause remanded.

Judgment reversed.

{a) Hammond v. The People, 32 111. R. 473.

290 SPRINGFIELD.

Bingham v. Maxcy.

Jonathan L. Bingham, appellant, v. John A. Maxcy,

appellee.

APPEAL FROM MACOUPIN.

A sheriff, wherever practicable, should, before he levies an execution,
notify. the defendant; and the defendant, upon such notice, if he
claims the benefit of the statute which exempts the land on which he
lives, and his personal property from sale, should furnish the officer
with a description of his other property liable to sale on execution, or
he will be considered to have waived his rights under the statute. (»)

This cause was heard before Woodson, Judge, at April term,
1853, of the Macoupin Circuit Court.

W. Week, for appellant.

J. M. Palmer, for appellee.

Treat, C. J. Maxcy obtained a judgment against Bingham,
and sued out an execution thereon. Bingham" was then the
owner of an undivided half of two tracts of land, which he had
inherited from his mother, but the records of the county did not
show any title in him. One tract adjoined the land on which he
resided, and was within the same inclosure ; the other tract
was unoccupied woodland. When the sheriff went to levy the
execution, Bingham told him that he would like to put land on
the plaintiff. The sheriff levied on personal property, for which
Bingham gave a delivery, bond. Bingham did not offer land to
the sheriff, nor did he object to the levy on personal property.
On this state of case, Bingham moved the circuit court to set
aside the levy. The motion was denied, and he appealed to this
court.

The statute declares, that "the plaintiff in execution may
elect on what property he will have the same levied, except
the land on which the defendant resides, and his personal proper-
ty, which shall be last taken in execution." R. S. ch. 57, § 9.
By this statute, a defendant may insist that his personal property
and the land on which he resides, shall not be taken in execu-
tion until the rest of his property in the county is exhausted.
This provision is made for his benefit, and he may waive any
right under it. It is the duty of a sheriff, before he proceeds to
levy an execution, whenever practicable, to notify the defendant ;

(a) Thorp v. Wheeler, 23 111. R; 546 ; Tuttle v. Willson, 24 111. R. 559 ;
Pitts V. Magie, 24 111. R. 612 ; People v. Palmer, 46 111. R. 402.

DECEMBER TERM, 1853. 291

Solomon v. The People.

and ic then becomes the duty of the latter, if he claims the ben-
efit of this statute, to furnish the officer with a description of
his other property liable to sale on execution. If he has notice,
and fails to furnish such description, he must be considered as
waiving his rights under the statute ; and the sheriff may pro-
ceed to levy on any of his property not otherwise exempt from
execution. If a sheriff levies upon the personal property or
homestead of the defendant without giving him notice of the
execution, the latter may still insist upon his right to have the
judgment satisfied out of his other property. But he must, in
such case, furnish the sheriff with a list of that property at the
earliest opportunity. See the case of Cook v. Scott, 1 Gilm.
333, where this court put the same construction upon a similar
statute.

In this case, the sheriff gave the requisite notice of the execu-
tion, and the defendant failed to insist upon his rights under the
statute. He permitted the sheriff to seize personal property,
without requiring him to satisfy the execution by the sale of real
estate. He did not give the sheriff a list of his real estate or
even inform him that he had such estate. He must be held to
have waived all benefit under the statute. It was too late to insist
upon this right after the making of the levy and the execution of
the delivery bond. The court very properly refused to set aside
the levy.

The judgment is affirmed.

Judgment affirmed.

Joel Solomon, appellant, v. The People, appellees.
APPEAL FROM FULTON.

A recognizance taken before an officer not having judicial power, is
without any binding force.

This case was heard before Wilkinson, Judge, at January
term, 1853, of the Fulton Circuit Court.

Browning & Bushnell, for appellant.

W. C. GouDY, State's Attorney, for appellees.

Treat, C. J. In August 1851, Holden was examined before

292 SPRINGFIELD.

Solomon v. The People.

the president of the town of Canton, on a charge of larceny,
and was required to give security in the sum of ^300 for his
appearance in the circuit court, or stand committed. He failed
to give the security, and was committed to jail. In October,
he, with Solomon as surety, acknowledge a recognizance before
the circuit judge, in the penalty of $300, conditioned for
his appearance to answer the charge, and was thereupon released
from custody. In November, an indictment for larceny was
found against him, and the recognizance was declared forfeited.
A scire facias was afterwards issued upon the recognizance,
and a judgment was entered against Solomon for the amount
thereof.

The people were not entitled to judgment on the recog-
nizance. According to the decision of this court in the case of
The People v. Maynard, 14 111. 419, the president of the town
of Canton possessed no judicial power. He had no authority
to investigate the charge against Holden, and require him to
give security for his appearance in the circuit court, or commit
him to jail in default of giving security. He had no jurisdic-
tion of the case. Holden was therefore illegally restrained of
his liberty.(<a!) It follows that the recognizance entered into, to
procure his release, was without any binding force. It was an
involuntary obligation, taken without authority of law, and can-
not be enforced, It is the duty of a magistrate committing a
person to jail on a criminal charge, to indorse on the warrant in
what sum bail may be given ; and a judge, or two justices of
the peace, may take such bail from the accused, and discharge
him from imprisonment. R. S. ch. 30, § 206. In such case,
there is no inquiry into the truth of the charge, by the judge or
justices. Their duty is simply to take a recognizance in the
amount indorsed on the warrant of commitment, and discharge
the prisoner. They proceed on the ground that the charge has
been duly preferred and established. The circuit judge acted
under this provision, in taking the recognizance in question.
He made no inquiry respecting the truth of the charge, or the
validity of the previous proceedings. If Holden had been
brought before him on habeas co7yus, the result of his action in
the case might have been different. It might then have been
his duty to inquire into the facts of the case, and either remand
the accused into the custody of the sheriff, or take a recogni-
zance for his appearance to answer the charge. R. S, ch. 48,
§ 3.

The judgment must be reversed.

Judgmeiit reversed.

{(() Town of Lewiston v. Proctor, 23 111. R. 535.

DECEMBER TERM, 1853. 293

Whittaker et al. v. Murray et al.

Francis Whittaker et al., appellants, v. Samuel Murray et al.,

appellees.

APPEAL FROM MORGAN.

In an action upon a record which shows that an appearance was
entered for several defendants, one only being served, the plaintiffs are
entitled prima facie to a judgment. A recovery might be defeated by
showing a want of authority on the part of the attorneys who entered
an appearance.

This cause was heard before Woodson, Judo^e, at the Morgan
Circuit Court, in November term, 1853.

D. A, Smith, for appellants.
M. McCoNNEL, for appellees.

Treat, C. J. This was an action of debt brought by Whit-
taker and Palmer against Murray and Saunders. The declar-
ation was on the record of a judgment, rendered in the court
of common pleas for the county of St. Louis and State of
Missouri, in favor of the plaintiffs and against the defendants.
The defendants craved oyer of the record, and demurred to the
declaration. The court sustained the demurrer, and rendered
judgment for the defendants.

The only question in the case is, whether the record as set out
on oyer showed a valid judgment against the defendant Murray.
The suit in Missouri was commenced by attachment, certain per-
sons being summoned as garnishees. There was no service of
process on the defendants. The court made an order for the
publication of notice to the defendants, but it does not appear
that any notice was ever given. The cause of action, as set forth
in the petition or declaration, was for money lent and advanced by
the plaintiffs to the defendants ; and for damages sustained by
the plaintiffs by reason of a breach of contract on the part of the
defendants. An answer was filed in the name of Saunders, de-
nying all the allegations of the petition. It was signed by
"Strother & Leslie for defendants," and sworn to by Saunders.
This order was then made : "On motion of the defendants, a dedi-
7nus is awarded to them to take depositions in the State of Illinois."
The plaintiffs subsequently moved "to suppress the depositions
taken for defendants ;" and the court, after hearing " the parties

ILL. R. VOL. XV. 20

294 SPRINGFIELD.

Whittaker et cd. v. Murray et al.

by their attorneys," sustained the motion. The record then recites
that the parties came again by their attorneys and submitted the
cause to a jury, who found the issue for the plaintiffs, and asses-
sed their damages at $780. A paper was then filed in these
words : " Defendants, by their attorneys, move for a new trial for
the following reasons: 1. The verdict is against the evidence.
2. It is against the weight of evidence. 3. It is against law.
4. It is against law and evidence. 5. The damages are excessive.
Strother and Leslie, attorneys for defendants." The court refus-
ed to grant a new trial, and rendered judgment against the defen-
dants for the amount of the verdict. The case throughout the
record is entitled against both defendants.

It is manifest from the record, that the attorneys appeared for
both of the defendants. They assumed to act for them in every
stage of the case. This appears as well from the entries made by
the clerk, as from the positive acts of the attorneys themselves.
They entered motions on behalf of the defendants generally, and
signed the papers of the case in the same manner. There is
nothing in the record to indicate that they intended to appear for
Saunders only. The fact that the answer was not the joint act
of the defendants, was probably because Murray was not present
to verify the truth of its statements. Even it was subscribed by
Strother and Leslie, as attorneys for the defendants. It was not
necessary for the protection of Murray, that he should be a party
to the answer. The plaintiffs were bound to establish a joint
cause of action against the defendants. He, therefore, had the
full benefit of the denials of the answer, and of all evidence intro-
duced on the part of the defense. If the attorneys had authority
to appear for Murray, the judgment is conclusive against him.
And the presumption clearly is, that they had such authority. (a)
^imeler v. Dawson, 4 Scam. 536 ; Welsh v. Sykes, 3 Gilm. 197.
He may, perhaps, defeat a recovery on the record, by showing
that they had no authority to enter an appearance for him. It
was intimated in Welsh v. Sykes, that such a defense may be in-
terposed. But this want of authority, if such be the fact, must
be distinctly alleged and proved by Murray. The court erred in
sustaining the demurrer. Prima facie ^ the plaintiffs are entitled
to judgment on the record.

The judgment is reversed, and the cause is remanded.

Judgment reversed.

(a) Thompson et al. v. Euimert et al., x>ost 41G ; Lawrence v. Jarvis, 33
lU. R. 310.

DECEMBER TERM, 1853. 295

Bingham et al. v. Maxcy.

J. L. Bingham el al., plaintiffs in error, v. J. A. Maxcy, admin-
istrator of Preston, defendant in error.

ERROR TO MACOUPIN.

The rule of raveat emptor is strictly applicable to sales by administrators.
The purchaser must inquire into title and quality before purchasing.

This cause was heard before Woodson, Judge, at October
-term, 1850, of the Macoupin Circuit Court.

W. Week, Jr., for plaintiffs in error.

J. M. Palmer, for defendant in error.

Treat, C. J. This was an action of assumpsit, brought by
Maxcy, adminiatrator of Preston, against Bingham and others.
The declaration was on a promissory note made by the defend-
ants to the plaintiff" in his character of administrator. The
defendants pleaded non-assumpsit, and gave notice that they
would prove on the tr-ial as a defense to the action, " that the
note sued on was given to the said plaintiff as administrator,
ior the assignment and transfer to the said defendants of the
patent right to make, use, vend, and sell in the State of Mich-
igan, Eaton's improved grain thresher and cleaner ; the right of
which was patented to William Eaton, on the 28th day of July,
18-13, and the right of the State of Michigan being, or pretended
to have been, assigned to the intestate Noah Preston ; said
defendants herewith file the specifications accompanying said
patent right, and make them part of this notice, in which are
set forth the pretended combinations and improvements in the
machinery aforesaid, and which said defendants say were neither
new nor useful, but that the same parts of machinery had all
been used for like purposes and in different combinations, and
producing the same effect ; said defendants also give notice, that
they will prove that said combinations which are denominated
in the patent as new and useful, were only new things made out
of old materials, and that the same were frivolous ; and also
that threshing and cleaning machines made in accordance with
the specifications and under the directions of said Eaton, were
not adapted to the purposes contemplated in the patent, and were
greatly inferior to other machines then at the time of said
patent known and in use ; the will also prove in defense, that the

296 SPRINGFIELD.

Bingham et al. v. Maxcy.

whole of said combination was in use with like effect anterior
to the pretended combinations made by said Eaton, who is not
the inventor, discoverer, or combiner of the several parts alleged
to be new and useful ; and so the defendants say, that the con-
sideration of the note has wholly failed." The court excluded
this notice, because it did not constitute a sufficient defense to the
action, the cause was then heard by the court, and a judgment
rendered in favor of the plaintiff for the amount of the note.

The notice was properly excluded. It presented no legal de-
fense to the action. If all of its allegations were true, the
plaintiff was still entitled to judgment. As a general principle
a purchaser at an administrator's sale acts at his peril. He must
inquire into the title, and ascertain the quality of the property
before he makes a purchase. The administrator only sells the
interest that was vested in the intestate ; and he makes no
warranty either for himself, or the estate which he represents.
The rule of caveat emptor is strictly applicable. (<z) Ricks v.
Dillahunty, 8 Porter, 134 ; Mellen v. Boarman, 13 Smedes &
Marshal, 100 ; Bashex v. Whisler,3 Watts, 490 ; Toxi^.Mensch,
3 Watts & Sergeant, 444 ; King v. Gunnison, 4 Barr, 171.
Ray V. Virgin, 12 111. 216, is not in conflict with this principle.
In that case, the purchaser of property at an administrator's
sale, was allowed to show in defense of an action on the note
given for the price, that the administrator made fraudulent rep-
resentations as to the soundness of the property. But the
decision was put solely on the ground of fraud, the court dis-
tinctly recognized the general principle. It said, "in the absence
of fraud, the purchaser at such sales must not only look out for
the title, but for the quality of the article which he purchases,"
In this case, it is not pretended that there was any unfairness
at the sale, or any fraud on the part of the administrator. It
was the fault of the defendants, if they bid more for the
property than it was worth. It was, at most, an improvident
bargain, against which the law affords them no relief. They must
abide the consequences of their purchase.

The judgment is affirmed.

Judgment affirmed.

{a) If an administrator takes upon himself to warrant personal prop-
erty sold by him, the maker of a note given for such property must show-
failure of consideration vmder the warranty. Welch v. Gale, 24 111. R.
1x8.

DECEMBER TERM, 185B. 297

Reeve v. Mitchell .

Isaac N. Reeve, plaintiff in error, v. Fielding Mitchell,
defendant in error.

ERROR TO GREENE.

The evidence upon which .^ decision is founded, must appear of record,
in order to have it reviewed in this court.

The submission of a pending action to arbitration operates as a discon-
tinuance of it.

This cause was heard by Woodson, Judge, at October Term,
1852, of the Greene Circuit Court.

M. McCoNNEL, for plaintiff in error.

D, A. Smith and J-. M. Palmer, for defendant in error.

Treat, C. J. This state of case appears from the record.
In April, 1852, Reeve obtained a judgment against Mitchell in a
justice's court, and Mitchell prosecuted an appeal. A summons
issued out of the circuit court, but the sheriff made no return
thereon. An agreement is copied into the record, bearing date
in September, 1852, purporting to be executed by the parties,
which recites the recovery of the judgment before the justice
and the pendency of the cause in the circuit court by appeal, and
concludes as follows : " The parties agree to arbitrate the said
suit, by each party choosing one good and lawful man and having
them duly sworn, aud then decide the matter agreeable to justice
between said parties, according to the testimony offered in the
■case ; and each party fully agrees to abide the decision of the
arbitrators and withdraw their said suit from the circuit court."
-A paper is also copied into the record, purporting to be the award
■of arbitrators, which requires Mitchell to return a mare and colt
to Reeve, and each party to pay one-half the costs of the suit.
Then follows an order made by the circuit court, in October, 1852,
in these words : "Ordered, that this case be dismissed according
to agreement on file, eash party to- pay half the costs." This
•order of dismissal is assigned for error by Reeve.

The judgment n^ust be affirmed, unless it affirmatively appears
that error has intervened to the prejudice of the plaintiff. We
cannot say that the circuit court erred in dismissing the suit. The
presumption is that the decision was correct ; and there is nothing
in the record to rebut this presumption. The evidence upon
which the decision was founded does not appear in the record. It

298 SPRINGFIELD.

Weer v. Hahn.

may have required the dismissal of the case. If the evidence did
not warrant the ruling of the circuit judge, it should have been
incorporated into a bill of exceptions. This court might then
review his action in the case. It may be that the submission and
award were in evidence before him. If so, they clearly author-
ized the order of dismissal. If these papers are genuine, the
parties had selected another tribunal to adjust their differenceSy
and the decision of that tribunal effectually concluded them from
any further litigation in this case. The submission of a pending
action to arbitration operates as a discontinuance thereof, even
though the arbitrators do not take upon themselves the burden of
the Bubmission.(a) Larkin v. Robbins, 2 Wend. 505 ; Town v.
Wilcox, 12 ib. 503. If there was such a submission by these
parties it amounted to a withdrawal of the case from the circuit
court, and fully justified the court in making the order of dis-
missal. The division of the costs could not prejudice the plain-
tiff. If he had done an act that prevented him from prosecuting
the suit, he could not complain that a part of the costs was
adjudged against him. The dismissal of the case did not deter-
mine the validity of the award. The plaintiff' may still show
that the award is not binding, and, therefore, no bar to- another
suit on the same cause of action.
The jadgment is affirmed.

Judgment affirmed.

{a) But see K. S. 1845, p. 56, sec. 3. Thorpe i-. Starr, 17 111. R. 199.

William Weer, Jr., appellant v. Mary Hahx, appellee.

APPEAL FROM MACOUPIN.

The constitutional provisions requiring the publication of notice to the
owners of real estate, where lands have been sold for taxes, demand
that the notice shall be published in the nearest newspaper to the
connty ; and this question as to which is the nearest newspaper, must
be determined by comparing the distance between the places of pub-
lication and the county line.(«)

This cause was heard before Woodson, Judge, at Sep-
tember term, 1853, of the Macoupin Circuit Court.

(a) Holbrook v. Fellows, 38 HI. R. 440.

DECEMBER TERM, 1853. 299

Weer v. Halm .

W. Weer, Junior, /;?'o se.
D. A. Smith, for appellee.

Treat, C. J. This was an action of: ejectment, brought hj
Hahn against Weer, to recover the possession of a tract of land
situated in Macoupin county. On the trial, the plaintiff intro-
duced the following evidence. A patent for the land in ques-
tion from the United States to Carson. A deed for the same
from Carson and wife to Schaffer. A deed for the same
from Schaffer and wife to the plaintiff. This deed was ac-
knowledged before an alderman of the city of Philadelphia, on
the 10th of October, 18-10. It was accompanied by proof of
his official character. The deed was again acknowledsied before
an alderman of the same city, on the 27th of June, 1853.
The prothonotary of the supreme court of Pennsylvania certi-
fied under the seal of the court, in reference to this acknowl-
edgment, that the deed was executed and acknowledged in
conformity with the laws of that State. The defendant object-
ed to the introduction of this deed.

The defendant proved that a judgment was entered against
the land, at the June term, 1850, of the county court, for
the taxes for the year 1819 ; that the same was purchased by
him at the sale under the judgment, on the lOtli of June,
1850 ; and conveyed to him by the sheriff, on the 16th of
March, 1853. The deed contained a reference to an affidavit
of the defendant, made on the same day.

The plaintiff then offered the affidavit in evidence. It set
forth the purchase of the land by the defendant, and proceed-
ed to state ''that said land was listed in the name of Mary
Hahn and that she was and is a non-resident ; that affiant
caused a notice of said sale, and of the time when the redemp-
tion expired, to wit, the 10th of June, 1852, to be published
in a newspaper called the Greene County Banner, no newspa-
per being published in this county, and which was the near-
est newspaper in this State to this county, to wit, being in
Carrolton ; that no person, as affiant was then informed and
believed, was in possession of said premises three months before
said 10th of June, 1852 ; in said notice, published as afore-
said, it was stated that said land was purchased hj him, on
the 10th day of June, 1850 ; that the same was described as
the east half of section No. 31, T. 11 N., R. 7 W. and the
time of redemption would expire June 10, 1852 ; that said
notice was published three times successively, the last insertion
being three months before said time of redemption expired,
to wit, on the 27th of December, 1851."

300 SPRINGFIELD.

Weer v. Halin.

The plaintiff then proved that during the entire month o£
December, 1851, newspapers were regularly published in each of
the towns of Hillsboro, Jerseyville, Edwardsvilie, and Alton; and
that each of those towns was nearer to the line of Macoupin
county, than the town of Carrolcon in which the Greene County
Banner was published, the differeace in favor of Alton being
nearly seven miles.

On this evidence, the court rendered judgment for the plain-
tiff ; and the defendant prosecuted an appeal.

1. It will not be necessary to pass upon the validity of the
first acknowledgment of the deed from Schaffer and wife to the
plaintiff. There is no good objection to the second acknowl-
edgment. The statute declares that deeds may be "executed
and acknowledged or proved without this State and within the
United States or their territories, or the District of Columbia, in
conformity Avith the laws of such State, territory, or district :
Provided, that any clerk of a court of record within such State,
territory, or district, shall, under his hand and the seal of such
court, certify that such deed or instrument is executed and
acknowledged or proved in conformity with the laws of such
State, territory, or district." R. S. ch. 24, § 16. This provision
was literally complied with in reference to the second acknowl-
edgment of the deed. The officer taking the acknowledgment
made a full certificate of the facts on the deed ; and the clerk of
the highest court in Pennsylvania then certified under his official
seal, that the deed was executed and acknowledged in conformity
to the laws of that State.

2. Objection is made to the tax title, because the notice to
the owner was not published in the nearest newspaper to the
county. The constitution declares that "Hereafter no purchaser
of any land or town lot, at any sale of land or town lots for
taxes due either to this State or any county, or incorporated
town or city within the same, or at any sale for taxes or levies
authorized by the laws of this State, shall be entitled to a deed
for the lands or town lots so purchased until he or she shall
have complied with the following conditions, to wit : Such pur-
chasers shall serve, or cause to be served, a written notice of
such purchase on every person in possession of such land or
town lot, three months before the expiration of the time of
redemption on such sale ; in which notice he shall state when he
purchased the land or town lot, the description of the land or
town lot he has purchased, and when the time of redemption
will expire. In like manner he shall serve on the person or per-
sons in whose name or names such land or lot is taxed, a simi-
lar written notice, if such person or persons shall reside in the

DECEMBER TERM, 1853. 301

Weer v. Hahn .

county where such land or lot shall be situated ; and in the
event that the person or persons in whose name or names the
land or lot is taxed do not reside in the county, such purchaser
shall publish such notice in some newspaper printed in such
county ; and i£ no newspaper is printed in the county, then in
the nearest newspaper that is published in this State to the
county in which such land or lot is situated ; which notice shall
be inserted three times, the last time not less than three months
before the time of redemption shall expire. Every such pur-
chaser, by himself or agent, shall, before he shall be entitled to
a deed, make an affidavit of his having complied with the con-
ditions of this section, stating particularly the facts relied on as
such compliance ; which affidavit shall be delivered to the per-
son authorized by law to execute such tax deed, and which
shall by him be filed with the officer having custody of the
records o£ lands and lots sold for taxes and entries of redemp-
tion in the county where such land or lot shall lie, to be by such
officer entered on the records of his office, and carefully pre-
served among the files of his office ; and which record or affi-
davit shall be /*r^;/^a facie evidence that such notice has been
given."

These constitutional provisions are clearly designed for the
benefit of the owner of real estate. The principle is, that he
shall not be divested of his title by a sale for taxes, unless he
has, when practicable, personal notice of the sale, and of the
time when his right to redeem will expire. To secure this
object, the purchaser is required to serve a written notice of
those facts on every person in possession of the land, and on
the party in whose name it was listed for taxation, at least
three months before the time of redemption will expire. If the
latter is not a resident of the county, a similar notice must be
published in a newspaper oi: the county ; and if there is no
newspaper within the county, the notice must be published in
the nearest newspaper to the county. These requirements being
intended for the protection of the owner, must be strictly com-
plied with in order to divest him of title. They are imperative,
and cannot be disregarded. The purchaser is not entitled to a
deed until these precedent conditions are strictly performed ;
and if he succeeds in obtaining a deed without such perform-
ance, the title of the owner will not thereby be defeated. In
this case, the plaintiff" in whose name the land was assessed, did
not reside in the county, and no newspaper was published
therein. It was therefore incumbent on the defendant to give
notice in the " nearest newspaper published in this State to the
county." The question is, has he complied with this requisi-

302 SPRINGFIELD.

Ham V. The People.

tion ? It is clear that the answer must be in the negative. The
notice is to be published in the nearest newspaper to the county.
That is a matter-of-fact, which is easily ascertained. A news-
paper of an adjoining county may not be the nearest newspaper
to the county in which the land is situated. And the news-
papers of the adjoining counties may not be equally near to the
county where the land lies. The question which is the nearest
newspaper to the county, must necessarily be determined by
comparing the distances between the places of publication and
the county line. That is the only way of ascertaining the paper
in which to give the notice. In this case, there were four news-
papers published nearer to the county than the one in which
the notice was inserted. The notice should have appeared in
the Alton paper, its office of publication being several miles
nearer to the county than that of the Carrolton papers. The
fact that the latter paper had a respectable circulation in the
county, has nothing to do with the question. The owner has
the right to insist upon a strict execution of this requirement of
the constitution. He is not to be deprived of his estate, except
in the mode prescribed. The affidavit of the defendant was only
prima facie evidence that the notice was published in the nearest
newspaper. It was competent for the plaintiff to prove that the
fact was otherwise. And when that was done, the sheriff's deed
necessarily fell for the want of foundation upon which to
stand.

The judgment is affirmed.

Judgment affirmed.

Claborn Ham, appellant, v. The People, appellees.
i.PPEi.L FROM PIKE.

Appeals from penalties for assault and battery, should be entered before
the clerk of the circuit court. The act of the 9th February, 1853, did
not change existing acts, as to the mode of taking an appeal ; but ex-
tended the right to appeal, to cases not previously provided for, and
authorized the amendment of appeal bonds.(«)

This case was heard before P. H. Walker, Judge, at Sep-
tember term, 1853, of the Pike circuit court.

(or) L. of 1853, p. 125.

DECEMBER TERM, 1853. 303

Ham V. The People.

C. L. HiGBEE, for appellant.

J. S. Bailey, State's Attorney, for the people.

Treat, C. J. In July, 1853, a justice of the peace imposed
a fine upon Ham for assault and battery. Within five days,
Ham and a surety executed an appeal bond, which was
approved by the justice. It was conditioned for the due prosecu-
tion of the appeal, and for the payment of whatever judgment
might be rendered on the trial or dismissal of the appeal. In
the circuit court, the State's attorney entered a motion to dis-
miss the appeal, and Ham made a croes-motion to amend the
bond. The court refused the motion to amend, and sustained
the motion to dismiss. That decision is assigned for error.

The Revised Statutes give a party convicted of an assault and
battery an appeal to the cii'cuit court, on his entering into
bond before the clerk within five days from the rendition of the
judgment, conditioned for the payment of whatever judgment
the court may render in the case. R. S. ch. 59, § 99. Under
this provision, it was decided in Stephens v. The People, 13
111. 131, that a bond with a condition like the one executed in
this case, was not a compliance with the statute, and could not
be amended. See also Swafi"ard v. The People, 1 Scam. 289,
and Walsh v. The People, 12 111. 77. It was held in the cases
of Edwards v. Vaudemark, 13 111. 633, and Ward v. The People,
ib. 635, that where jurisdiction over fines and penalties is con-
ferred on justices of the peace, appeals will not lie from their
decisions unless expressly given by statute. The act of the 9th
of February, 1853, provides : " That in all cases where jurisdic-
tion has been heretofore, or shall be hereafter given to any
justice of the peace, mayor of a city, or other officer in this
State, over any fine or penalty imposed for the violation of any
law of this State, appeals shall be allowed, and may be taken
to the circuit court of the county in the same manner that
appeals by law are authorized to be taken, and prosecuted from
judgments of justices of the peace in other cases. That in all
cases of appeals from justices of the peace, mayors of cities, or
other officers, no appeal shall be dismissed for any informality
in the appeal bond. But it shall be the duty of the court before
whom the appeal may be pending, to allow the party to amend
the same, so that a trial may be had on the merits of the case."
The object of this act was to authorive appeals to be taken in
cases not provided for by previous laws, and to allow appeal
bonds to be amended in cases where that right did not already
exist ; and thus obviate the eftect of the decisions referred to.

304 SPRINGFIELD.

•

The People v. Rhodes.

This was tlie full scope of its provisions. It was not tlie design
to repeal existing statutes, but only to supply defects in them.
The former part of the act has no application to this case, for
the law already gave an appeal. Ham had only to go before
the clerk and execute a bond, in order to secure the full benefit
of an appeal. But he did not avail himself of this right. The
attempt to take an appeal before the justice, was a mere nullity.
That officer had no jurisdiction of the matter. Nor has the lat-
ter part of the act any application to the case. It relates to
cases in which appeal bonds are informal or defective, and not
to cases where appeals are not taken within the time, or before
the officers specified in the statute. Here, no appeal was taken,
and there was no bond to be amended. If the obligation in
question had been approved by the clerk within five days from
the entering of the judgment, this provision of the act would
be applicable, and the defect could be cured by amendment.
To permit the amendment to be made, would be equivalent to
allowing an appeal to be taken after the expiration of the time
limited by law.

The judgment is affirmed.

Judgment affirmed.

The People of the State of Illinois, appellants, v. Alden
Rhodes, appellee.

APPEAL FROM THE GREENE COUNTY COURT.

A. sells a tract of land to B. tor a specific sum, and gives a bond for a
deed, and receives but a portion of the purcliase-money in hand, and
takes notes for the payment of the residue in annual installments ; B.
went into possession of the land, and listed it for taxation ; A. was also
assessed for the amount due upon the notes given by B. Held, that
this was not subjecting the same property to double taxation, and that
A. must pay the assessment.

The facts of this case appear in the opinion of the court.

D. B. Campbell, State's attorney, for the people.

Treat, C. J. Rhodes sold a tract of land to Walker for
$1,400, and gave him a bond for a deed. Walker paid $200
of the purchase-money, and gave notes for the payment of the

DECEMBER TERM, 1853. 305

The People v. Rhodes.

residue in annual installments of $100. He went into possession
of the land, and listed it for taxation in his own name for the
year 1853. Rhodes was assessed for the same year $1,000 on
account of the notes. He moved the county court to set aside
this assessment. The court sustained the application, because
the notes were not taxable. The county clerk transmitted a
statement of the facts to the auditor, and he notified the clerk
that he should move this court to reverse the order of the county
court. The clerk gave Rhodes due notice of this application of
the auditor.

The case is brought before this court under the o4th section
of the "Act for the assessment of property," approved on the
12th of February, 1853. It authorizes a person assessed on ac-
count of property which he believes is not subject to taxation, to
apply to the county court, at its September term, to set aside the
assessment. If the court sustains the application, the
decision is not to be final unless approved by the auditor, to
whom the county clerk certifies a full statement of the case. If
the auditor approves the decision, the clerk corrects the
assessment accordingly. If he does not approve the decision, he
notifies the clerk of his objections thereto, and that he will
move the supreme court, at its next term, to reverse the decision ;
and the clerk thereupon informs the party interested, of the
application to the supreme court. The auditor files a certified
statement of the facts, upon which the supreme court decides the
case.

A reference to some other provisions of the same act will be
necessary, in order to determine whether the property in question
was liable to taxation. The 1st section provides "that all prop-
erty, whether real or personal, in this State, all moneys, credits,
investments in bonds, stocks, joint-stock companies, or other-
wise of persons residing in this State, or used or controlled
by persons residing in this State, shall be subject to tax-
ation." The 2d section declares that "the term 'credits,'
Avherever used in this act, shall be held to mean and include
every claim or demand for money, labor, or other valuable
thing, due or to become due." The 3d section exempts from
taxation the property of the State and counties, and property
deemed necessary for school, religious, and charitable purposes.
The same section provides, that " no person shall be required to
list a greater portion of any credits, than he believes will be
received or can be collected."

It is manifest fi'om these and various other provisions of the
same law, that the legislature designed to tax every species of
property belonging to individuals and private corporations. This

306 SPRINGriELD.

The People v. Rhodes.

is the positive requirement of the constitution. It directs the
legislature to "provide for levying a tax by valuation, so that
every person and corporation shall pay a tax in proportion to the
value of his or her property." The principle is, that all prop-
erty shall contribute to the support of government. A man's
wealth may consist of credits exclusively. He is as much pro-
tected in the enjoyment of that kind of property, as one "w

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